* P ursuant to 5 TH C IR

. R. 47.5, the Court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5 TH C IR

. R.

47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-10598

_____________________

GENARO RUIZ CAMACHO, JR.,

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 Northern District of Texas

(3:95-CV-2539-G)

___________________________________ _______________________________ April 17, 1998

Before DAVIS, JONES, and BARKSDALE, Circuit Judges.

PER CURIAM: *

Genaro Ruiz Camacho, Jr., a Texas death row inmate convicted

of capital murder, seeks a certificate of probable cause to

challenge the district court’s denial of his petition for a writ of

habeas corpus. The certificate is DENIED ; the stay of execution,

VACATED

.

I.

In 1990, Camacho was convicted and sentenced to death for the

capital murder of David Wilburn. During the guilt phase, as- 2 -

discussed infra

, three eyewitnesses testified that they saw Camacho

shoot Wilburn; and the State also presented evidence of Camacho’s

involvement in the murders, a few days later, of Evellyn and Andre

Banks, who had been present when Wilburn was murdered. During the

punishment phase, the Sta te presented evidence that Camacho had

committed two additional murders.

The Texas Court of Criminal Appeals affirmed, Camacho v.

State

, 864 S.W.2d 524 (Tex. Crim. App. 1993); and the United States

Supreme Court denied Camacho’s petition for a writ of certiorari.

Camacho v. Texas , 510 U.S. 1215 (1994).

Camacho filed a state habeas application on 20 March 1995. In

mid-April, he moved for an evidentiary hearing; and, in mid-July,

he requested discovery and, again, an evidentiary hearing. On 7

August, less than two weeks after the State filed its answer, the

state habeas court entered findings of fact and conclusions of law

recommending that relief be denied. In early October, in an

unpublished opinion, the Texas Court of Criminal Appeals adopted

those findings and conclusions and denied habeas relief.

Two weeks later, on 23 October 1995, Camacho filed a federal

habeas petition, as well as a motion for stay of execution and an

evidentiar y hearing. The district court granted the stay and

appointed counsel. On 24 November, the State filed an answer and

moved for summary judgment. On 26 December, Camacho applied for

funds to employ experts; three days later, he moved f or leave to

conduct discovery. In late May 1996, Camacho filed a supplemental

application for funds to employ an expert. On 18 July 1996, the- 3 -

magistrate judge denied Camacho’s request for discovery, stating

that the discovery sought constituted an “impermissible fishing

expedition”.

The magistrate judge reported findings of fact and conclusions

of law in early January 1997, thoroughly analyzing Camacho’s claims

in painstaking detail, and recommended that an evidentiary hearing

was not required and that habeas relief be denied. In late April

1997, the district court overruled Camacho’s objections and adopted

the findings and recommendation, with only slight revision.

The district court denied Camacho a certificate of

appealability. But, because Camacho filed his habeas petition

before 24 April 1996, the effective date of the Antiterrorism and

Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat.

1214 (1996), pre-AEDPA law applies. S ee Green v. Johnson

, 116 F.3d

1115 (5th Cir. 1997). Camacho seeks a pre-AEDPA certificate of

probable cause (CPC) from our court.

II.

In his CPC application, Camacho claims that the district court

erred in the following ways:

1. By denying habeas relief on his claims

(a) That he was denied due process of law and a fair

trial by the prosecution’s failur e, in several instances, to

disclose evidence favorable to the defense, in violation of Brady

v. Maryland , 373 U.S. 83 (1963);

(b) That he is entitled to a new trial because of newly

discovered evidence which points directly to his innocence of the- 4 -

crime for which he was convicted and that, to deprive himof his

life without a jury’s consideration of such evidence, will deprive

him of his life without due process of law;

(c) That the prosecutor’s use of peremptory challenges

to exclude from the jury three members of minority races was based

on racial grounds in violation of the Equal Protection Clause and

Batson v. Kentucky , 476 U.S. 79 (1986), and its progeny; and

(d) That he was denied his constitutional right to a

fair trial by an impartial jury because of the admission of

evidence relating to the murders of Evellyn and Andre Banks four

days after the murder for which he was convicted and sentenced to

death; and,

2. Concomitantly,

(a) By refusing to allow discovery, especially as to a

recantation concerning the newly discovered evidence;

(b) By refusing to conduct an evidentiary hearing; and

(c) By denying funds to employ experts.

Furthermore, except for his Batson claims, Camacho maintains

that, because the state habeas judge neither presided over his

capital murde r trial, nor conducted an evidentiary hearing, the

presumption of correctness accorded to state court factual

findings, pursuant to pre-AEDPA 28 U.S.C. § 2254( d), does not

apply. The district court applied AEDPA in denying habeas relief;

but, as discussed, we must, instead, consider Camacho’s CPC motion

under pre-AEDPA law. Nevertheless, we will, for purposes of this

opinion, assume that the presumption does not apply (except, as- 5 -

dis cussed i nfra

, with respect to Camacho’s Batson claims, as to

which there are findings of fact by the trial judge).

To obtain a CPC, a habeas petitioner must make “a substantial

showing of the denial of a federal right”. Lucas v. Johnson , 132

F.3d 1069, 1073 (5th Cir. 1998) (internal quotation marks and

citation omitted). “This standard does not require petitioner to

show that he would prevail on the merits.” D rew v. Collins

, 5 F.3d

93, 95 (5th Cir. 1993), cert. denied

, 510 U.S. 1171 (1994).

Instead, the petitioner must “demonstrate that the issues are

debatable among jurists of reason; that a court could resolve the

issues [in a different manner]; or that the questions are adequate

to deserve encouragement to proceed further.” B arefoot v. Estelle

,

463 U.S. 880, 893 n.4 (1983) (emp hasis in original; internal

quotation marks and citation omitted).

Because several of Camacho’s claims require consideration of

the trial testimony of certain witnesses, that evidence, as

presented by individual witnesses, rather than described

collectively, is stated in considerable detail as a backdrop to our

consideration of Camacho’s CPC applicat ion. The facts are also

summarized in our court’s opinio n affirming Camacho’s federal

kidnaping conviction; on appeal from that conviction, Camacho

raise d some of the same claims he asserts now as the basis for

federal habeas relief. S ee United States v. Jackson

, 978 F.2d 903

(5th Cir. 1992), cert. denied , 509 U.S. 930 (1993).

Sam Junior Wright testified for the State as follows. On 20

May 1988, at approximately 8:00 a.m., he and h is three-year-old- 6 -

son, Andre Banks, were upstairs in his residence at 7927 Nassau

Street, in the Pleasant Grove area of Dallas, Texas. Wright lived

there with Evellyn Banks (Andre’s mother) and her two sons, who had

already left for school. After hearing Evellyn Banks, who was

downstairs at the time, cry out, Wright looked downstairs and saw

a black man, whom he did not recognize, and a nother man, whom he

recognized from prior drug-related d ealings as “Gino”. (At the

time, Wright did not know “Gino’s” last name; Dallas Police and the

FBI later identified him as the petitioner, Genaro Camacho. The

black man was later identified as Juan Jackson.)

The black man ordered Wright and his son downstairs. When

Wrigh t got there, he saw a white man (later identified as George

David Cooke) whom he had never seen befor e. Another “white guy”

(later identified as Larry Gene Merrell, referred to in the record

as an “Indian”), whom Wright also had never seen before, came in

through the back door. Gino did not have a weapon, but the other

three intruders were armed. Gino (Camacho) asserted that Wright

owed him $20,000, and stated that, if Wright did not get the money,

he would kill Evellyn and Andre Banks. Gino then hit Wright.

Upon hearing a knock at the door, Gino took a .357 Magnum from

one of his accomplices and stood behind the door. David Wilburn,

Wright’s driver, entered the house. Gino ordered Wilburn to lie

face-down on the floor, and shortly thereafter shot him in the back

of the head. Gino told one of his accomplices to handcuff Evellyn

Banks.- 7 -

Wright escaped through the front door while the intruders were

distracted by the sound of the back door slamming. He saw a

neighbor, and shouted to her to call the police. He eventually

went to Evellyn’s mother’s home and told Evellyn’s brother what had

occurred. Evellyn’s brother went to Wright’s house and gave the

name “Gino” to the police. Wright later called the FBI and, after

his subsequent arrest (for failing to appear for sentencing on a

1985 drug conviction), gave a statement to the FBI. At the time of

trial, W right was serving a 22-year sentence in a federal

institution for the 1985 drug conviction and for failing to appear

for sentencing. On cross-examination, Wright testified that he had

moved for reduction of sentence, but that the motion had not yet

been heard.

One of Evellyn Banks’ sons, Cecil DeWayne Ban ks, identified

Camacho in court and testified that he had seen C amacho at the

Nassau residence on a bout four occasions prior to the day of the

incident, 20 May 1988; and that Camacho never came alone, but

usually was accompanied by at least two or three other men.

E vellyn Banks’ brother, Darrell Anthony Banks, testified that he

met Camacho at the Nassau house; and that on one occasion Camacho

mentioned that Wright owed him money.

Sabrina Wilson testified as follows. In May 1988, she lived

across the street from Wright’s house. Around 8:30 a.m. on 20 May

1988, when crossing the street after leaving a friend’s house, she

saw a white car, and Wright shouted at her to call the police,

because the people in the car had tried to kil l him. She saw a- 8 -

driver and passenger, but did not know if anyone was in t he back

seat. Wilson was six to eight feet from the driver’s side of the

car, and got a close look at the driver, whom she identified in

court as Camacho.

After calling the police, Wilson went to work. A detective

showed her some photographs the next day (21 May), and she

identified Camacho’s photograph. (Outside the presence of the

jury, in an identification hearing, Wilson testified that she was

shown the photographs “within a day or two” after the incident.)

Retired Dallas Police Officer L. C. Lake testified that, while

on patrol, he was called to Wrigh t’s house; that he observed the

burglar bars opened, the front door ajar, and a cut chain and

padlock on the ground; and that, inside t he front door, he saw a

black male who appeared to be dead.

Dal las Police Detective Michael W. Black testified that he

responded to the call on Nassau on 20 May 1988; that a chain had

been cut off the burglar bars on the front porch and pieces of the

chain were on the ground; that the front door had been forced open,

and pieces of the door frame were in the living room inside the

front door; that Wilburn’s body was face-down in the living room

just inside the front door; that the bullet entered the lower part

of the back of Wilburn’s head and exited thro ugh his cheek; that

bullet fragments were found on the rug just beneath Wilburn’s head,

and a large bullet fragment was on the carpet three feet from

Wilburn’s head; that it appeared to have been an execution-type

killing; that drugs and drug paraphernalia were found in the house;- 9 -

and that the fingerprints found at the scene were not identified as

those of any of the individuals arrested.

Following a competenc y hearing outside the presence of the

jury, accomplice George David Cooke testified as follows. Around

6:00 a.m. on 20 May 1988, Camacho awakened him and said that he

w anted Cooke to go with him “to collect some money”. Cooke,

Jackson, and Merrell traveled to Wright’s house in a white Lincoln

driven by Camacho. Jackson, who was riding in the front passenger

seat, took two semiautomatic pistols and a .357 Magnum from a bag

under his feet and distributed them. When they arrived at Wright’s

house, pursuant to Camacho’s orders, Jackson cut the lock on the

burglar bars around the front porch; and Merrell went around the

side of the house and cut the telephone lines. Camacho kicked the

front door open. At some point, the .357 Magnum was handed to

Cooke. Jackson brought Sam Wright and Andre Banks downstairs, and

Camacho asked Wright what happened to his money. Camacho mentioned

that he had “left his boy” (referring to heroin) with Wright.

Upon hearing a knock at the door, Camacho stepped behind the

door and opened it; Jackson told the person at the door (Wilburn)

to come in. Camacho shut the door behind Wilburn, got the .357

Magnum, ordered Wilburn to get on his knees, patted him down, and

then ordered him to lie face-down on the floor. Camacho told

Jackson to shoot Wilburn if Wilburn moved or spoke. After

questioning Wright again about the money Wright owed him, Camacho

walked over to Wilburn, p ut the gun to the back of his head, and

shot him. After further questioning of Wright about his money,- 10 -

Camacho ordered Jackson to handcuff Evellyn Banks, and sa id that

“we had to take them all with us”. As they were leaving the house,

Wright ran away. Camacho, who was driving, ordered Jackson to get

Wri ght, but Jackson said he could not catch him. As they were

driving away, they saw Wright running across a field and Camacho

told Jackson to shoot him, but Jackson said he was too far away.

C ooke testified that the captives were taken to a Dallas

apartment he rented with Eddie Blaine Cummings. After three days,

Camacho , Cooke, Spencer Charles Stanley, and Evellyn and Andre

Banks traveled to Oklahoma in Cooke’s car. Stanley had given Cooke

a list of items that he wanted Cooke and Camacho to buy before the

trip, including “tape, a knife, pillow, some lime

... and some

rope”. The group went to a motel in Ardmore, Oklahoma, arriving

after midnight. Stanley left to “dig a hole”. Camacho assured

Evellyn Banks that he had ordered an airplane to be flown to an

airstrip, and that he would see that she and Andre Banks were flown

“somewhere where she had some relatives”.

Cooke testified further that, at approximately 10:00 p.m. that

n ight, Camacho, Cooke, Stanley, and Evellyn and Andre Banks left

the motel, ostensibly to go to the ai rstrip. After driving to a

remote area, the group walked through some woods, following

Stanley, who was carryin g Andre Banks on his back, to the grave

Stanley had dug. Stanley threw Andre Banks into the grave and shot

him, and then shot Evellyn Banks. Camacho ordered Stanley “to use

the rest of the bullets” on Andre Banks, who was “still making some

noises”.- 11 -

After burying Andre and Evellyn Banks, Camacho, Stanley, and

Cooke drove to Lake Texoma to dispose of the shovel, pickaxe, and

weapon before returning to the motel in Ardmore. T hey were joined

there by Cummings and Pamela Miller; and then all of them returned

to Dallas.

Cooke testified that he had been arrested on 15 August 1988,

and charged with two counts of aggravated kidnaping. After his

arrest, he led the FBI to the grave of Evellyn and Andre Banks. At

the time of the state trial, he had entered a guilty plea in

federal court and was to be sentenced approximately a month later,

in mid-May 1990. He had also been indicted as an accomplice to

murder and kidnaping in Dallas County, and intended to plead guilty

to those charges.

On cross-examinatio n, Cooke testified that he and Cummings

rented the car that was used to drive to Wright’s house on 20 May

1988; that he purchased the semiautomatic weapons used at Wright’s

house; and that he rented the motel room in Oklahoma. He was

initially charged with capita l murder, but that charge was later

reduced to murder. Pursuant to his plea agreement for the

aggravated kidnaping charge in federal court, his sentence was to

be capped at 24 years, although the maximum punishment for that

offense is life imprisonment.

Another accomplice, Larry Gene Merrell, also testified for the

State. In most respects, Merrell’s testimony about the events at

Wright’s house was consistent with Cooke’s. However, according to

Merrell, Cooke (rather than Jackson) distributed the weapons in the- 12 -

car; Merrell (rather than Camacho) opened the door for Wilburn; and

Merrell (rather than Cama cho) was standing behind the door.

M errell’s testimony was also consistent, for the most part, with

Wri ght’s testimony; however, Merrell testified that he entered

Wright’s house through the front door (rather than the back, as

Wright testified). Merrell testified further that he saw Camacho

shoot Wilburn in the back of the hea d; and that he went back to

Oklahoma on the Sunday following the murder (22 May) and did not

see Camacho or the kidnaped victims again.

Merrell had been arrested on 16 September 1988, and made a

statement to the FBI. At the time of the state trial, he had

pleaded guilty in federal court to one count of kidnaping and was

awaiting sentencing; and he intended to plead guilty to a Dallas

County kidnaping charge. On cross-examination, Merrell testified

that, pursuant to his plea bargain, he was subject to a maximum

punishment of eight years.

FBI Special Agent Tase Bailey testified regarding the

investigation and arrests of the suspects, as follows. On the

evening of 21 May, FBI Agent Figueroa contacted him and advised

that he had developed the name of a s uspect. At that time, they

knew only that the suspect was named “Gino” and that he had been

arrested previously by another police department. The next

morning, 22 May, they determined that the suspect’s name was Genaro

Camacho. They obtained a photograph of Camacho, and Dallas Police

conducted photographic line-ups. They were also trying to identify

a white male, a black male, and possibly another Hispanic male.- 13 -

Agent Bailey testified that Cooke led investigators to the grave of

Evellyn and Andre Banks, and to the location where the weapon used

to murder them had been thrown into Lake Texoma.

On cross-examination, Agent Bailey testified that Cummings and

Cooke were close associates; that Cummings selected the car used in

the kidnaping and ordered Cooke to purchase the semiautomatic

weapons; that Cooke stated that the handcuffs used on Evellyn Banks

were obtained from Cummings; that Cummings offered jewelry, which

he had stolen fro m his mother, to Cooke in exchange for the

weapons; and that Merrell and Stanley were hometown friends of

Cummings. On redirect examination, Agent Bailey testified that the

reaso n Camacho, Cummings, and the others came together in Dallas

was narcotics activity

— Camacho was related to persons in Mexico,

and they planned to fly marijuana into the Dallas area and

distribute it from there; and that, when Camacho was arrested on 31

March 1989, as he came across the bridge from Mexico into McAllen,

Texas, he used the name “Tomas Sanchez”.

The defense c ase consisted of further cross-examination of

Wright, Agent Bailey, and Cooke. When Cooke and Wright were asked

to demonstrate how Camacho shot Wilburn, Cooke indicated that

Camacho h eld the gun in his left hand; Wright, that Camacho used

his right.

The defense also presented the testimony of a Tarrant County

probation officer and a psychologist. The probation officer

testified that Wright had been placed on probation in 1981 for

unlawf ul possession of a controlled substance (78 pounds of- 14 -

marijuana); that he had failed to report to the probation office at

least 10 times; and that his probation had never been revoked. The

psychologist testified that, after conducting a series of

psychological tests on Cooke, at the request of Cooke’s attorney,

he determined that Cooke was insane on 20 May 1988, and that

Cooke’s “recollection of facts is

... very problemati cal ...

[because] he has delusional disorder problems”. T he defense theory

was that Wright and Cooke were not credible witnesses, and that

someone other than Camacho shot Wilburn.

Cummings testified as a r ebuttal witness for the State, as

follows. He met Camacho about two months prior to Wilburn’s

murder, and he and Camacho discussed “making some big money” by

flying marijuana into the United States from Mexico. On 20 May

1988, he and Pamela Miller were at the apartment when Evellyn and

Andre Banks were brought there by Camacho, Cooke, Merrell, and

Jackson. Camacho told him that he (Camacho) had ordered Cooke to

kill “the man”, but that Cooke could not follow orders, so he

(Camacho) had to “kill the man”. Although Camacho had discussed

killing Merrell, it was agreed that Cummings would take Merrell

back to Oklahoma and would try to locate an airplane to use in

transporting Camacho to Mexico and then in transporting marijuana.

Cummings had been arrested on 5 August 1988, and indicted in

federal court as an accessory; had pleaded guilty; and was awaiting

sentencing.

FBI Special Agent Jose Figueroa also testified as a rebuttal

witness for the State, as follows. On 20 May 1988, he received a- 15 -

cal l from the Dallas Police about the murder and kidnaping. He

went to the neighborhood and spread the word that he needed to talk

to Wright as soon as possible. On 21 May, at approximately 10:00

p.m., Wright called him and stated that the shooter was named

“Gino”. On 22 May, based on information provided by Wright in the

21 May telephone conversation, he learned that “Gino” was Camacho.

After Wright was arrested, Agent Figueroa interviewed him and

showed him a photographic sprea d, from which Wright identified

Camacho’s photograph. On cross-examination, Agent Figueroa

testified that there is no physical evidence that ties Camacho to

Wright’s house or to the grave site in Oklahoma.

Finally, Jeaneene Eliz abeth Wallace testified as a rebuttal

witness f or the State, as follows. Her friend, Cummings,

introduced her to Camacho. In early May 1988, she was with

Camacho, who was angry, and who “said that this man had owed him a

lot of money, like $8,000.00, and then he grabbed me by the throat

and he stuck his thumb in my throat and he said he was going to

kill this man and his family because he grew good coca and he grew

good marijuana and that this man owed him money”.

A.

Camacho contends that the prosecution violated B rady by

failing to disclose: (1) the full extent of Cooke’s plea bargain

agreement with the State; (2) that the State’s original theory

involved three, rather than four, s uspects, as reflected in the

initial prosecution report prepared by Dallas Police Officer T. J.

Barnes; (3) the affidavit of James Scott, who witnessed some of the- 16 -

events surrounding the murder, and the fact that Scott identified

someone other than Camacho from a photog raphic lineup; (4) that

Jane Wallace did not identify Camacho from a photographic lineup as

being at Wright’s house on 20 May 1988; and (5) that Rose Wallace

was coerced by police to make a positive identification of Camacho

when she was shown a photographic lineup. (Camacho asserted a

s imilar B rady claim on appeal from his federal kidnaping

conviction. S ee United States v. Jackson

, 978 F.2d a t 912.) For

these Brady claims, Camacho maintains that the district court also

erred by denying his discovery and evidentiary hearing requests.

As is well-known, “suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective

of the good faith or bad faith of the prosecution”. B rady

, 373

U.S. at 87 (emphasis added). In U nited States v. Bagley

, 473 U.S.

667 (1985), a majority of the Court held that, regardless of

whether requested by the accused, favorable evidence (exculpatory

or impeachment) is material “if there is a reasonable probability

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

the proceeding would have been different”. B agley

, 473 U.S. at 682

(opinion of Blackmun, J.); id

. at 685 (White, J., concurring in

part and concurring in judgment). And, in K y les v. Whitley , 514

U.S. 419 (1995), the Court emphasized that Bagley materiality “is

not a sufficiency of the evidence test”, id . at 434; and that, in

determining materiality, the suppressed evidence must be

“considered collective ly, not item-by-item”. I d

. at 436. We- 17 -

review the Brady ruling de novo

. S ee East v. Johnson

, 123 F.3d

235, 237 (5th Cir. 1997).

1.

Before considering, collectively, the materiality of the

allegedly undisclosed items, Camacho’s contentions and the prior

proceedings with respect to each of the items are summarized.

a.

Camacho contends that the State’s failure to disclose the

extent of eyewitness Cooke’s plea bargain agreement with the State

violated his rights under the Fifth, Sixth, and Fourteenth

Amendments, because the full extent of the agreement was critical

to a determination of Cooke’s credibility. Concomitantly, he

asserts that the district court erred by denying his request to

depose Cooke about Cooke’s understanding of the plea agreement, and

by denying his request for an evidentiary hearing to resolve

disputed factual issues which were not fully and fairly resolved in

state court.

A t a pretrial hearing on 19 February 1990, before the

c ommencement of testimony in Camacho’s capital murder trial, the

attorney who represented Cooke in federal court testified that his

understanding of the state plea bargain agreement was that it was

for a life sentence; the attorney who represented Cooke on the

state charges, th at he had no knowledge regarding the agreement.

As stated, Cooke testified at trial that h is agreement with

the State was that he would not be charged with capital murder and

would receive a life sentence in exchange for his guilty plea to- 18 -

kidnaping and murder. And, at the close of the State’s case-inchief, the prosecutor stated that Cooke had agreed to plead guilty

t o the Dallas County charges and that, in exchange for his plea,

the State had agreed that, if Cooke testified truthfully, it would

recommend a l ife sentence to be served concurrently with any

sentence previously imposed in fede ral court. When Cooke was

recalled by the defense, he testified that he was “exposed to two

life sentences in the state”.

Approximately a month after trial, in June 1990, Camacho moved

for a new trial, alleging that, in return for his testimony, Cooke

had received additional promises from the State that were not

revealed to defense counsel and were not presented to the jury. At

a hearing on the motion, Camacho introduc ed a 10 May 1990 letter

(dated two days after Camacho was sentenced to death), from Hugh

Lucas, lead counsel for the State at Camacho’s trial, to Dennis

Brewer, Cooke’s lawyer on the federal charges, to which was

attached a page outlining the State’s plea agreement with Cooke.

The attachment stated that Cooke had not been indicted for capital

murder; that the State agreed to recommend a life sentence,

concurrent, on the Dallas County case; that, upon discharge of

Cooke’s federal sentence, or the expiration of 20 calendar years,

whichever is greater, th e State would recommend parole and that

Cooke be released from incarceration; and that, after the

expiration of 30 calendar years, th e State would recommend that

Cooke be discharged from all Dallas County sentences.- 19 -

Camacho’s trial counsel, Joseph Montemayor and Julius

Whittier, testified that they did not learn of the entire agreement

until after Ca macho was sentenced to death. On the other hand,

Brewer (counsel on federal charges) testified that the attachment

to Lucas’ 10 May letter reflected his understan ding of the

agreement between Cooke and the State; and that the agreement had

been reached prior to Cooke’s testimony in Camacho’s trial. When

asked by Camacho’s counsel if it was a “substantial benefit” for

the State not to oppose parole eligibility, Brewer testified that

“it’s a terrible detriment

... if the State d oes oppose it ...

compared to the other alternative I guess it would be considered a

benefit.”

Lucas testified that he never agreed to recommend parole for

Cooke; that the 10 May letter was prepared hurriedly, in response

to a request by Brewer, who needed the letter in federal court that

day, and mistakenly included the terms rega rding parole

recommendation; that he was out of town when Cooke entered his

guilty plea, and did not have an opportunity to correct the

agreement; and that Cooke’s testimony at trial set out the plea

agreement as he believed it to be at that time.

Edwin King, Cooke’s attorney in state court, testified that

the plea agreement was that Cooke was going to get a life sentence;

and that he never saw Lucas’ 10 May letter until the day Cooke

entered his guilty plea in state court. King testified further

that, in his opinion, the State’s recommendation regarding parole

was not “wort h the paper it’s written on”, but that “it made- 20 -

Cook[e] feel better”; that he told Cooke that the agreement was

that he was going to get life sentences, concurrent, and that, at

a minimum, the State would not oppose his eligibility for parole;

that both he and Brewer told Cooke that any parole decision would

be made by the Board of Pardons and Parol es, not by the Dallas

County District Attorney’s Office; and that the State’s agreement

not to oppose parole eligibility “wasn’t so important that [Cooke]

would have changed his mind”, because Cooke was more concerned

about his federal sentence.

Cooke, who was incarcerated in Oklahoma at the time, did not

testify at the hearing on the new trial motion, because Camacho’s

counsel was unable to secure his presence. ( There is no indication

in the record that Camacho’s counsel sought a continuance of the

hearing in order to obtain Cooke’s testimony.) At the conclusion

of the hearing, the trial court denied the motion.

The state habeas court concluded that Camacho was procedurally

barred from raising the issue of whether the State failed to reveal

the extent of Cooke’s plea agreement, because he did not raise the

issue on direct appeal. Alternatively, it found that Camacho

failed to prove that an agreement existed outside the papers signed

in Cooke’s case.

The district court held that disc losure of the State’s

agreement to recommend parole was not required, because those terms

did not become part of the plea agreement until after Camacho’s

trial ended; and that, although the State had agreed, prior to

Cooke’s testimony, that it would not actively oppose parole for- 21 -

Cooke at the end of his federal sentence, such agreement was not

required to be disclosed because it was immaterial. The court

rejected Camacho’s request for an evidentiary hearing, stating that

Cooke’s testimony was unnecessary, because “the rec ord makes it

clear that no Brady violation occurred”.

b.

The next claimed Brady violation is not disclosing the initial

prosecutio n report of Dallas Police Officer T. J. Barnes, which

reflects the State’s initial theory that the offense involved three

perpetrators. Camacho asserts that Barnes’ report, which states

that Wright could testify that three men entered his house, could

have been used to impeach Wright’s trial testimony th at four

entered. And, again, he contends that the district court erred by

denying his discovery and evidentiary hearing requests on this

issue.

The state habeas court rejected this claim, after making

detailed findings; for example, that the State’s initial theory was

readily available to the defense through medical reports, and

because the substance of Barnes’ report was identical to the

affidavit supporting the arrest warrant (a public record).

The district court held that Wright’s trial testimony that

three men were in his house when he was forced downstairs, and that

a fourth ente red later, was consistent with the statement in

Barnes’ initial report that Wright could testify that Camacho and

two other men broke into his house. It concluded that, in the

light of Cook e’s and Merrell’s testimony, which corroborated- 22 -

Wright’s testimony that four men entered and that Camacho shot

Wilburn, the collateral nature of the alleged contradiction between

Barnes’ report and Wright’s testimony compelled the conclusion that

the undisclosed impeachment evidence was not material.

c.

The prosecution is claimed to have also violated Brady by

failing to disclose the affidavit of James Scott, given to Dallas

Police on the day of the incident, 20 May. Camacho asserts that

Scott’s testimony would have been favorable to him, because Scott

saw only three men leave Wright’s house, and because Scott saw a

black man driving the car away from Wright’s house, which would

have contradicted Sabrina Wilson’s testimony that Camacho was

driving.

Scott’s 20 May affidavit states that he saw a Mexican man, a

white man, and a black man at Wright’s house that morning; that he

saw three men drag Evellyn Banks and her son to the ca r and put

them in the back seat; that the white man and the Mexican man sat

i n the back seat with Evellyn and Andre Banks; and th at “the

colored man” drove.

Scott did not testify at Camacho’s capital murder trial, but

he testified for the defense in Camacho’s federal kidnaping trial.

Consistent with his affidavit, he testified that he saw three men

arrive at, and leave from, Wright’s house on 20 May 1988; and that

the black man was driving the car a s it left. He described the

Mexican man as having “sort of long” hair, “back on his neck”.- 23 -

But, when asked at the federal trial whether there was any

question in his mind about who was driving the car, Scott replied:

“That’s what I thought. I was scared because I didn’t want to get

too close.” A nd, when then asked wh ether he saw only three men

get into the car, Scott stated: “That’s all I seen. It may have

been more, but that’s what I seen go to the car.” When the car

came back around the block, Scott did not know whether the black

man was still driving.

Scott testified further at the federal trial that a detective

showed him some photographs of some “Spanish” individuals the next

day, and he indicated to the dete ctive the man he thought he had

seen, but the detective told him he had picked the wrong one. On

cross-examination, Scott testified that he did not see the men

drive up and did not see how many people got out of the car; and

that Sabrina Wilson was in a position to see who was driving.

In its response to Camacho’s state habeas app lication, the

State submitted the affidavit of prosecutor Lucas, in which he

stated that he interviewed Scott in April 1990, prior to Camacho’s

s tate trial, and that Scott told him he was shown a photographic

lineup and could not identify anyone.

The state habeas court rejected this claim, with extensive

findings; for example, that Scott’s identity as a potential witness

was disclosed to the defense; that any inconsistency between

Scott’s affidavit and the statement s of other witnesses was not

material, because Scott was equivocal in his identification of the

driver of the getaway car, and his testimony did not exclude- 24 -

Cam acho from being present at, and responsible for, the murder;

that Scott’s testimony that he was shown a photographic lineup was

not credible; but that, even if he had been shown the lineup, the

fact that he may have identified someone other than Camacho was not

exculpatory, because Scott did not witness the murder and was not

called as a witness.

Likewise, the district court held that Scott’s affidavit was

not inconsistent with the state trial testimony that three men

entered the front door of Wright’s residence, while the fourth went

around the side of the house to cut the telephone line. It stated

that, because three eyewitnesses testified that they saw Camacho

shoot Wilburn, and because Scott testified at Camacho’s federal

trial that, although he only saw three men come out of the house,

there may have been more than three men involved, Scott’s affidavit

was not material.

The d i strict court stated further that Scott’s statement

regarding the driver was not material to whether Camacho murdered

Wilburn. It noted also that Scott testified at the federal

kidnaping trial that he “thought” the black guy was driving, but

was scared and did not want to get too close, and that Wilson’s

testimony that Camacho was driving was corroborated by the

testimony of Merrell and Cooke that Camacho d rove the car to and

from Wright’s house.

The district court concluded that Camacho had failed to

overcome the presumption that the state habeas court’s findings

regarding whether Scott was shown a photo spread and did not- 25 -

identi fy Camacho were correct. Finally, it held that the

information in Scott’s affidavit could have been discovered through

the exercise of reasonable diligence, because Scott’s name was

provided to defense counsel in the State’s first witness list,

filed 15 December 1989.

d.

The fourth Brady claim is for not disclosing that Jane

Wallace, who did not testify at Camacho’s capital murder trial, had

failed to identify him as one of the perpetrators. Jane Wallace

testified for the defense in Camacho’s federal trial that, on the

morning of 20 May 1988, she saw a “Mexican” at Wright’s house, but

could not see his face because his back was turned toward her; and

that she thought she saw four to five men coming out of Wright’s

house.

She testified further that a detect ive showed her some

photographs; that, when asked if she had ever seen any of the men

in the photographs, she pointed out Camacho’s photograph, and

signed the back of it, but she did not tell the detective where she

had seen the ma n before, because he did not ask; and, that she

r ecognized Camacho’s photograph because she had seen hi m at

Wright’s residence on previous occasions, but she did not see him

there on the morning of 20 May 1988. She testified further that

she did not remember seeing Camacho that morning, but that he could

have been there.

The state habeas court found that Jane Wallace’s testimony was

not exculpatory, because she did not claim that Camacho was not- 26 -

present at Wright’s house on the morning of the offense; and that

her identity was disclosed to the defense prior to trial.

The dist rict court held that B rady does not require the

disclosure of such evidence, because Jane Wallace did not tell the

police when she had seen Camacho at the time she identified his

photograph; accordingly, the State did not know that Jane Wallace

identified Camacho’s photograph because she had seen him at

Wright’s house on occasions prior to the murder, but that she did

not see him there on the morning of the murder.

Camacho contends that the district court’s conclusion is

contradicted by Detective Barnes’ investigative notes, which state

that “Jane Wallace

... identified Camacho and said she had seen him

at Sam’s house numerous times before”. He asserts that he is

entitled to an evidentiary hearing to resolve the factual dispute

regarding whether the police knew the basis for Jane Wallace’s

identification of Camacho.

e.

The final Brady claim is for failing to disclose that Rose

Wallace had been coerced into identifyi ng Camacho’s photograph.

Camacho asserts that her testimony would have been favorable to his

defense, because it would have discredited the police investigation

of the State’s theory of the case; alternatively, that reasonable

jurists could disagree on whether her testimony would be favorable,

and that the questions surrounding this evidence, including the

display of the photographic spreads, are at least adequate to

deserve encouragement to proceed further (obtain CPC).- 27 -

Rose Wallace did not testify in Camacho’s capital murder

trial, but she testified for him at his federal trial, as follows.

On 20 May 1988, she saw Evellyn Banks in handcuffs sitting in the

car by herself, but did not see A ndre Banks; she saw two men

outside Wright’s house; and she had seen “the Mexican guy” in the

newspaper (as discussed below), but he had his back toward her.

Later, a police officer showed her three photographs and asked her

if she could identify anyone. She told him that she could not,

because the man had his back to her. The officer told her she had

to pick one, and showed her which photograph to pick. Although she

signed the back of Camacho’s phot ograph, she did not know if the

man she saw at Wright’s house was Camacho; the photograph she

signed was the same one that was in the newspaper.

In response to Camacho’s state habeas application, the State

submitted the affidavit of Detective Barnes, who stat ed that

Camacho’s photograph did not appear in the newspaper until a fter

Rose Wallace identified it.

The state habeas court found that Rose Wallace’s allegations

of coercion were not credible, and that Camacho had failed to prove

that any coer cion was exculpatory, because Rose Wallace was not

called as a witness in his capital murder trial.

The dis trict court held that, because Rose Wallace did not

testify at Camacho’s cap ital murder trial, her forced

identification was not favorable to his defense, because he could

not use the evidence to impeach her. The court stated further that

her testimony would not have materially helped Camacho’s defense,- 28 -

because she testified at the federal kidnaping trial that she could

not identify the Hispanic male who was present at Wright’s house on

the day of Wilburn’s murder, because his back was toward her.

2.

As discussed supra

, we ass ume that the presumption of

correctness does not apply to the state habeas court’s underlying

factual findings on the Brady claims. In addition, we assume that

Camacho’s cla im regarding Cooke’s plea agreement is not

procedurally barred. Nevertheless, considering the allegedly

undisclosed evidence collectively

, we conclude that Camacho has not

shown that there is a reasonable probability that, had the evidence

been disclosed, the result of the proceeding would ha ve been

different.

We agree with the district court that Camacho has not shown

that the State suppr essed an agreement to recommend parole or

discharge for Cooke, because the evidence reflects that the

agreement did not exist until after Camacho’s capital murder trial,

when the prosecutor mistakenly included those terms in a hurriedlydrafted letter for Cooke’s federal coun sel. Although the State

did not disclose to Camacho’s counsel that it had verbally agreed

to not oppose Cooke’s parole, there is no basis for inferring that

such an agreement influenced Cooke’s testimony, in the light of the

evidence that Cooke was well aware that the Dallas County District

Attorney’s Office had no influence over parole decisi ons made by

the Texas Board of Pardons and Paroles. (His counsel on the State- 29 -

charges testified that he and the attorney representing C ooke in

federal court so informed Cooke, as noted supra ).

Cooke’s eyewitness testimony about Wilburn’s murder was

corroborated by the eyewitness testimony of Wright and Merrell. It

was further corroborated by Wilson’s testimony that Camacho drove

the car away from the scene of the murder, and by the testimony of

Cummings, to whom Camacho admitted c ommitting the murder.

Considering the jury’s knowledge that Cooke had avoided a capital

murder charge by pleading guilty, there is no reasonable

probability that its determination of his credibility would have

been affected by knowledge of whatever marginal benefit Cooke might

receive from the State’s agreement not to oppose his parole. See

Pyles v. Johnson

,

___ F.3d

___, ___, 1998 WL 94881, at *13 (5th

Cir. 1998) (where State’s witness admitted that self-interest

motivated his testimony, disclosure of the terms of a better deal

than described by the witness at trial “would have at best had a

marginal negative impact on the jury’s credibility assessment”).

The State asserts that Camacho has not demonstrated that the

evidence regarding James Scott an d Jane and Rose Wallace was

suppressed, b ecause each of their names appeared on the State’s

first witness list, filed three months before trial, and the

defense, exercising reasonable diligence, could have interviewed

each of them and discovered what each knew about the events of 20

May 1988. Although the State is correct that “[a] B rady violation

does not arise if the defendant, using reasonable diligence, could

have obtained the information”, Williams v. Scott

, 35 F.3d 159, 163- 30 -

(5th Cir. 1994), cert. denied , 513 U.S. 1137 (1995), we will make

yet another assumption beneficial to Camacho: that the disclosure

of the identities of these witnesses was not adequate to apprise

the defense of their knowledge of the relevant events.

Nevertheless, we conclude that the suppre ssed evidence, t o the

extent that it was exculpatory , was not material.

None of the three claimed to have witnessed the murder, and

their testimo ny was not consistent. Even assuming that Rose

Wallace was coerced into identifying Camacho, her testimony would

not have impeached th at of the eyewitnesses to the murder. The

statement in the investigative notes that Jane Wallace stated that

she had seen Camacho at Wright’s house numerous times before does

not support an inference that she told the police officer that she

did not see Camacho at Wright’s house on the day of the murder.

Moreover, neither Rose nor Jane Wallace could say that Camacho was

not present at Wright’s house on the morning of 20 May , because

both stated that the “Mexican” man had his back to them.

Scott’s statement that he saw three men enter the house and

t hree men drive away from the house is not inconsistent with the

trial testimo ny that three men (Camacho, Cooke, and Jackson)

entered the front of the house, while the fourth (Merrell) went

aroun d to the back of the house to cut the telephone line, and

entered the house later. The fact that Scott did not see the

fourth man is understandable, because he did not see the men get

out of the car and did no t look outside until he heard the noise

made by the three men who were breaking in at the front door.- 31 -

Likewise, Scott’s statement that he saw three men leave was not

necessarily inconsistent with the trial testimony that Camacho sent

Jackson to look for Wright, who had escaped. Moreover, at the

federal kidnaping trial, Scott was eq uivocal about whether three

men or more got into the car after coming out of Wright’s house; as

noted, he stated: “That’s all I seen. It may have been more, but

that’s what I seen go to the car.”

Scott’s statement that he thought that a black man was driving

as the car departed, but was unsure who was driving when the car

came back around the block, is insignificant and does not exculpate

Camacho from responsi bility for the murder, because, as noted,

S cott admitted that he was scared to get too close, a nd that

Wilson, who positively identified Camacho as the driver, was in a

better position to do so.

Contrary to Camacho’s assertion, Wilson was not the only

disinterested witness who placed Camacho at the scene of the

murder. Wright also placed him there. Camacho has not shown that

Wr ight had a motive to identify Camacho, rather than one of the

others, as the shooter.

Scott’s alleged “misidentification” also is not exculpatory,

because Scott could not identify any of the perpetrators. Although

Scott apparently told a police officer during the investigation

that the “Mexican” had “shoulder length” hair, he testified at the

federal trial that it was “[n]ot real long” and was “ back on his

neck”. In the light of the fact that the photographs of Camacho

indicate that his own hair was fairly long, he has not demonstrated- 32 -

that Scott’s description fit any other possible suspect more than

it fit him.

Even assuming that Scott was shown a photographic lineup,

Scott’s federal trial testimony that a detective told him that he

had picked the wrong photograph out of a lineup does not undermine

our confiden ce in the verdict. Scott d id not claim to have

witnessed the murder, and three of the eyewitnesses to it testified

that Camac ho shot Wilburn. Their testimony was corroborated by

Wilson’s identification of Camacho as the driver of the car and by

Cummings’ testimony that Camacho admitted to him that he committed

the murder.

The fact that the State’s initial theory was that three men

committed the offense was a matter of public record and was

available to Camacho and his counsel. But, even assuming that the

State had a duty to disclose it, this is neither material nor

exculpatory. That Detective Barnes’ initial report indicates three

suspects were involved does not tend to demonstrate that Camacho

was not one of them. Nor, again, does it undermine the testimony

of three eyewitnesses that Camacho shot Wilburn.

Camacho asser ts that he was entitled to discovery and an

evidentiary hearing, because there is a factual dispute regarding

when the FBI and Dallas Police learned of Camacho’s identity and

obtained a photograph of him. This contention is based on Wilson’s

trial testimony that she was shown a photographic lineup “the day

after” (21 May) the offense occurred, which purportedly contradicts

other evidence that the FBI and Dallas Police did not learn- 33 -

Camach o’s identity until 22 May, after Wright’s telephone

conversation with FBI Agent Figueroa on the evening of 21 May.

C amacho asserts that the inconsistency raises the “all important

question” of how the FBI or Dallas Police Department learned of

Camacho’s identity prior to his being identified by Wright.

The alleged discrepancy was apparent at Camacho’s state trial,

and could have been explored then . In any event, the record

demonstrates that, in Wilson’s state court testimony, she was

mistaken about the lineup date. As stated, in the identification

hearing outside the presence of the jury immediately prior to her

trial testimony, Wilson stated that she was shown the lineup a day

or two after the incident. At the federal trial, Wilson testified

that she gave a description of the suspects to FBI agents on 21

May, but was not shown any photographs at that time, and then, on

22 May, Detective Barnes showed her a photographic lineup. Her

testimony is corroborated by Agent Figueroa’s testimony at the

federal trial that he first obtained a photograph of Camacho on 22

May and gave th at photograph to Detective Barnes for use in a

photographic lineup to be shown that day to Wilson.

In sum, the net effect of evidence that the State’s initial

theory involved three suspects rather than four; that a witness who

did not testify at trial saw only three suspe cts and thought the

driver of the getaway car was black rather than Hispanic; that

witnesses who did not testify at trial were unable to identify

Camacho as being at Wright’s house on 20 May; that another witness

who did not testify at trial was coerced into identifying Camacho’s- 34 -

photograph; that one witness was mistaken as to when she was shown

a photographic lineup; and that the State had agreed not to oppose

parole for one of the accomplice eyewitnesses, is not sufficient to

undermine our confidence in the verdi ct. Therefore, we conclude

that there is no reasonab le probability that, had such evidence

been disclosed, the outcome of Camacho’s trial would have been

different.

Concomitantly, because Camacho has not demonstrated the

existence of a factual dispute that, if resolved in his favor,

would entitle him to relief, the district cou rt did not err by

denying his requests to employ an expert, and for discovery and an

evidentiary hearing. S ee Perillo v. Johnson

, 79 F.3d 441, 444 (5th

Cir. 1996) (a federal habeas petitioner i s entitled to discovery

and an evidentiary hearing only “[w]hen there is a factual dispute

[that], if resolved in the petitioner’s favor, would entitle [him]

to relief and the state has not afforded the petitioner a full and

fair evidentiary hearing”); see also Harris v. Johnson

, 81 F.3d

535, 540 (5th Cir.), cert. de nied , ___ U.S. ___, 116 S. Ct. 1863

(1996).

B.

Camacho contends that he is entitled to a new trial because of

newly-discovered evidence pointing to his innocen c e, and that

executing him without a jury’s consideration of such evidence would

deprive him of his life without due process. Along this line, he

contends that he is entitled to discovery, funds with which to

employ an expert witness, and an evidentiary hearing.- 35 -

“[I]t has long been a habeas rule that ‘the existence merely

of newly discovered evidence relevant to the guilt of a state

prisoner is not a ground for relief on federal habeas corpus.’”

Lucas v. Johnson

, 132 F.3d at 1074 (quoting Herrera v. Collins

, 954

F.2d 1029, 1034 (5th Cir. 1992), aff’d

, 506 U.S. 390 (1993)). “[A]

claim of ‘actual innocence’ is not itself a constitutional claim,

but instead a gateway through which a habeas petitioner must pass

to have his otherwise barred constitutional claim considered on the

merits.” H

errera

, 506 U.S. at 404. Camacho appears to rely on the

Supreme Court’s assumption, arguendo

, that “a truly persuasive

demonstration of ‘actual innocence’ made after trial would render

the execution of a defendant unconstitutional, and warrant federal

habeas relief if there were no state avenue open to process such a

claim”. Id . at 417. The Court noted that “the threshold showing

for such an assumed right would necessarily be ex traordinarily

high”. Id

.

Camacho’s claim is based on the 14 August 1992 affidavit of

Bobby Newton ( dated more than four years after the murder ), which

was attached to Camacho’s state habeas application. The affidavit

states that, early in the morning on 19 May 1988 (the day b efore

the murder), Newton was sitting on the front porch of a friend,

Danny Sheffield, directly across the street f rom Wright’s house;

that three men arrived in a big, light-colored car and knocked on

the door of Wright’s house; that Wilburn opened the door; that one

of the men shot Wilburn in the back of the head, causing Wilburn to- 36 -

fall to the floor, face-first; and that he knew Camacho, but did

not see him at Wright’s house on the morning Wilburn was murdered.

In response to Camacho’s state habeas application, the State

submitted the affidavit of Detective Barnes, who stated that the

events described in Newton’s affidavit did not match the physical

evidence; and the affidavits of long-time residents of the

neighborhood, who stated that they did not know either Newton or

Sheffield.

The state habeas court rejected this claim, and made extensive

factual findings; for example, th at Newton was not credible,

because he did not assert that he was present on the date the

offense occurred, and because the events described by Newton were

contrary to the physical and eyewitness evidence.

The district court held that it was unnecessa ry to consider

whether the state court’s findings were supported by the record,

because Newton subsequently recanted the contents of his affidavit.

In a 27 May 1996 letter to Camacho’s counsel, Newton stated:

Mr. Murphy I am writing you back to let you

know that I don’t wish to testify for you or

the State because when I gave you this socalled affidavit 4 years ago it was because at

that time I need a lawyer to help stop me from

coming to T.D.C. Mr. Murphy I am very sorry

about thi s man but I can’t an will not help

him because I wasn’t there. I lie so you

would help me an I was willing to lie for him

but since I have done my time here in T.D.C.

without your help why would you have the nuts

to send me these papers. I tell you this one

thing if you are the State have me come to

court I will te ll those people I didn’t see

nothings also my mother and father didn’t see

anything so they better not c ome up hurt in

any way.... But I will not lie for him or you

so Mr. Murphy please let me do my time an go- 37 - home to my family.... I will not testify for

him or against him. I didn’t see or hear

anything. I was running from the Law myself

when I seen you I seen my way out of here but

you didn’t help me so I will not lie for you that life so don’t write or send me anything

because I will tell the State the truth. You

have a nice day tell Mr. Camacho to pray but

if he killed Evellyn Bank an the baby boy he

should an will pay. But I will not have their

blood on my hand. NO!! WAY.

Concerning his assertion that the di strict court erred by

refusing to allow discovery on Newton’s recantation and to conduct

an evidentiary hearing, Camacho maintains that discov ery was

necessary to determin e whether counsel’s suspicions about postaffidavit contacts by law enforcement agencies with Newton were

responsible for his recantation. And, he contends that he was

ent itled to depose the physician who performed the autopsy of

Wilburn, to determine whether Wilburn was shot as Newton stated in

his affidavit.

Camacho also maintains that the district co urt erred by

denying his motion for authorization to employ an independent

pr ivate pathologist. In that motion, Camacho asserted that his

counsel had informally consulted with Dr. Charles Petty , a

pathologist and former Chief Medical Examiner for Dallas County,

who testified at trial; that Dr. Petty reviewed the autopsy report

and his trial testimony along with photographs of the crime scene;

and that Dr. Petty was of the preliminary opinion that, although he

testified at trial that the cause of death was consistent with an

individual who had been forced to lie on the floor and had a weapon

placed either at or ne ar his body and the trigger pulled, the- 38 -

physical evidence of the autopsy and crime scene is equally

consistent with the version of events related in Newton’s affidavit

— that Wilburn was shot standing up just inside the doorway.

Camacho contends further that he is entitled to a CPC on this

claim because someone other than Newton gave a similar account to

the police a nd the news media on the day of the murder. In

support, Camacho relies on a 20 May 1988 newspaper article, in

which it is reported that a Dallas Police Officer said that

“[w]hile the assailants were in the house, a visitor knocked on the

door and was shot to death as he stood in the doorway”, and that an

unidentified witness said that, after Wilburn knocked on the door,

“[s]omebody said come in and then they shot him right at the door”.

Even assuming that a claim has been stated for federal habeas

relief based on actual innocence, it fails for a number of reasons.

First, as the district court noted, Newton recanted. Second, his

affidavit falls far short of “a truly persuasive demonstration of

‘actual innocence’”. S ee Herrera

, 506 U.S. at 417 . In his

affidavit, Newton claims to have observed the murder the day before

it occurred. The record contains evidence that he had one

misdemeanor and five felony convictio ns; and that Sheffield, the

f riend Newton claims to have been visiting on the day of the

murder, did not live in either of the houses located directly

across from Wright’s. Newton’s statement that the victim was

already at Wright’s house when the perpetrators arrived, and opened

the door for them, is contradicted by testimony that entry into the

house was forced and by crime scene photographs showing that a part- 39 -

of the door frame was broken when entry into the house was forced,

as well as by the newspaper article Camacho relies on, which states

that the unnamed witness stated that the victim drove up after the

suspects arrived and was killed after they opened the door for him.

Finally, the affidavit is contradicted by the eyewitness testimony

of three individuals inside the room when Wilburn was shot.

Camacho’s conclusory assertion that unidentified law

enforcement officers might have influenced Newton’s recantation is

specula tive and insufficient to demonstrate the existence of a

factual dispute that, if resolved in his favor, would entitle him

t o relief. Accordingly, for this claim, he was not entitled to

expert assistance, discovery, or an evidentiary hearing.

C.

Relying on Batson v . Kentucky , 476 U.S. 79 (1986), Camacho

contends that the prosecutor’s exercise of peremptory challenges to

exclude three minority venire members (Elizabeth Gambo a, who is

Hispanic; Johnny Crowder and Charles Brooks, both of whom are

black) from the jury were racially motivated and that the

prosecutor’s reasons for striking them were pretextual.

To establish a B atson violation, Camacho must prove, of

course, that the strikes were motivated by purposeful racial

discrimination. Batson , 476 U.S. at 94 n.18; see also Purkett v.

Elem

, 514 U.S. 765, 767-68 (1995). In a federal habeas proceeding,

the trial court’s rulings on discrimination and pretext are factual

findings that are presumptively correct. See Purkett

, 514 U.S. at

769 (quoting pre-AEDPA 28 U.S.C. § 2254(d)); Washington v. Johnson

,- 40 -

90 F.3d 945, 954 (5th Cir. 1996), cert. denied , ___ U.S. ___, 117

S. Ct. 1259 (1997). Inasmuch as the factual findings on the B atson

claims were made by the trial court after a live evidentiary

hearing, we do not un derstand Camacho to contend that the

presumption is inapplicable to these claims.

At the conclusion of voir dire

, but before the jurors were

sworn, the trial court conducted a hearing on Camacho’s charge that

the State’s peremptory challeng es were racially motivated; the

prosecutor gave the following reasons for them.

As for Elizabeth Gamboa, he noted her youth (she was 24); she

still lived at home with her parents; her apparent lack of

understanding of some of the terms used in the indictment; and his

belief that she was “just not assertive enough to make a critical

decision on someone’s life”.

Crowder was struck because he indicated on his juror

questionnaire that he did not believe in the death penalty, but

testified during voir dire that, under certain circumstan ces, he

did believe in it. The prosecutor testified that he tried to make

sure that no one was selected as a juror who had circled the

following statement, as had Crowder, on his questionnaire:

“Although I do not personally believe in the death penalty, as long

as the law provides for it I could assess it under the proper set

of facts and circumstances.”

Finally, with respect to Brooks, his questionnaire appeared to

be contradictory as to whether he believed in the death penalty;

and, during voir dire, Brooks “could not adequately explain what to- 41 -

me was a discrepancy [—] he didn’t believe in the death penalty in

one question. The next question was, he did believe in it, and he

just

... he cannot adequately explain that answer.” T he prosecutor

also had some concern that Brooks was answering the questions in a

such a wa y as to ensure that he was selected as a juror, because

the bailiff had told him that someone who would be questioned that

day had expressed an interest in serving on the jury and had asked

how to respond to the questions in a way that would ensur e

selection.

Following the hearing, the trial court made extensive findings

of fact, including that the State gave no explanations based on

group bias; that it had articulated nondiscriminatory reasons for

the use of its peremptory challenges; and that there was no

purposeful discrimination by it in the exercise of its peremptory

challenges.

These findings are fully supported by the record. S ee 28

U.S.C. § 2254(d) (pre-AEDPA); Pur kett , 514 U.S. at 769.

Accordingly, Camacho is not entitled to a CPC on his Batson claims.

D.

Camacho’s final claim is that the admission of evidence of the

murders of Evellyn and Andre Banks deprived him of a Sixth

Amendment “right to a fair trial”. At trial and on direct appeal,

Camacho objected to this evidence on general relevance grounds.

And, he did not present this claim in his state habeas application.

However, he asserts const itutional grounds for the first time in

his federal habeas petition.- 42 -

The State contends that federal habeas review is barred by

Camacho’s failure to raise this claim in state court, because, if

Camacho attempted to raise it in a new state habeas application,

the Texas Court of Criminal Appeals would find an abuse of the

writ. S e e Nobles v. Johnson , 127 F.3d 409, 423 (5th Cir. 1997).

It contends further that state review would be barred by the

absence of a contemporaneous objection on Sixth Amendment grounds.

Alternatively, it contends that Camacho has not estab lished that

the admission of this evidence violated the Constitution.

It goes without saying that, in reviewing state evidentiary

rulings, the role of federal courts “is limited to determining

whether a trial judge’s error is so extreme that it constituted

denial of fundamental fairness.” Woods v. Johnson , 75 F.3d 1017,

1038 (5th Cir.), cert. denied

,

___ U.S.

___, 117 S. Ct. 150 (1996).

“The test applied to determine whether a trial error makes a trial

fundamentally unfair is whether there is a reasonable probability

that the verdict might have been different had the trial been

properly conducted.” K irkpatrick v. Blackburn

, 777 F.2d 272, 278-

7 9 (5th Cir. 1985), c ert. denied

, 476 U.S. 1178 (1986). “Habeas

relief is warranted only when the erroneous admission of evidence

played a c rucial, critical and highly significant role in the

trial.” L ucas v. Johnson

, 132 F.3d at 1082 (internal quotation

marks, brackets, and citation omitted).

When considering challenges to th e admission of extraneous

offenses under the Due Process Clause of the Fourteenth Amendment,

which guarantees “fundamental fairness” ( as noted, Camacho’s claim- 43 -

is based on his asserted Sixth Amendment “right to a fair trial” ),

our court has considered two factors: whether there is a strong

showing that the appellant committed the offense; and whether the

extraneous offense is rationally connected with the offense

charged. See Pentecost v. Estelle , 582 F.2d 1029, 1031 (5th Cir.

1978); Hills v. Henderson

, 529 F.2d 397, 400 (5th Cir.), cert.

denied , 429 U.S. 850 (1976).

Assuming that federal habeas review is not procedurally

barred, Camacho has not shown that the evidence was a dmitted

erroneously. First, there was a strong showing, through eyewitness

testimony, as to Camacho’s involvement in the kidnaping and murder

of Evellyn and Andre Banks. And, those murders are rationally

connected with Wilburn’s; the murders of Evellyn and Andre Banks

eliminated two of the eyewitnesses to Camacho’s murder of Wilburn.

But, even assuming that the evidence was admitted erroneously,

Camacho still has not shown that it had a substantial impact on the

verdict or rendered his tria l fundamentally unfair. As Camacho

conceded in his brief filed in the Texas Court of Criminal Appeals

on direct appeal, the evidence of his guilt was “overwhelming”, and

the State’s case was “powerful and unimpeached”. This is true even

without considering the evidence of the murders of Evellyn and

Andre Banks. Again, three eyewitnesses — Wright, Cooke, and

Merrell

— testified that Ca macho shot Wilburn. Again, Wilson

testified that she saw Camacho leaving the scene. And, again,

Cummings testified that Camacho admitted to him that he had

committed the murder. In sum, as the district court stated, the- 44 -

evidence of Camacho’s guilt for Wilburn’s murder was so

overwhelming that there is no reasonable probability that the jury

would have acquitted Camacho had the evidence of the murders of

Evellyn and Andre Banks been excluded. Accordingly, this issue

also does not provide a basis for a CPC.

III.

Because Camacho fails to establish a basis for a certificate

of probable cause, his request for the certificate is DENIED and

the stay of execution is VACATED

.

CERTIFICATE OF PROBABLE CAUSE DENIED ;

STAY OF EXECUTION VACATED