IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-40042

LESLEY LEE GOSCH,

Petitioner,

versus

GARY JOHNSON, Director,

Texas Dept. of Criminal

Justice, Institutional Division,

Respondent.

Appeal from the United States District Court

for the Southern District of Texas

(CV-97-126)

January 15, 1998

Before JOLLY, WIENER and EMILIO M. GARZA, Circuit Judges.

B Y T H E C O U R T:

IT IS ORDERED that petitioner’s application for

Certificate of Appealability (COA) from the district court’s denial

of his petition for writ of habeas corpus is hereby denied and his

appeal is hereby dismissed; and his petition for stay of execution

is likewise denied.

Although the instant appeal, application for COA, and petition1 (d) An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of State court shall

not be granted wit h respect to any claim that was adjudicated on

the mer its in State court proceedings unless the adjudication of

the claim ——

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States; or

(2) r esulted in a decision that was based on an

2 for stay of executi on have just been filed in this court, this

panel has been tracking petitioner’s direct and collateral appeals

in state and federa l court for years, most recently those in the

federal district court for the Southern District of Texas, having

timely received and carefully reviewed all filings of petitioner,

respondent, and the district court, when and as filed. As such, we

are intimately familiar with the facts and law, the arguments of

the parties, and the rulings of the district court and its reasons

therefor. Consequently, petitioner’s eleventh hour filings in this

court do not place us in a position of requiring more time than

remains before petitioner’s schedul ed execution in which to make

considered determinations and rulings on the matters now before us.

For the reasons set forth by the district court in its

extensive explications in its Order filed January 12, 1998, and its

subsequent rulings, we agree that the standard of review to be

applied here is that set forth in 28 U.S.C. § 2254, as amended by

the Anti-Terrorism and Effective D eath Penalty Act (AEDPA),

particularly subsection s (d)(1) and (d)(2). 1 Our study of theunreasonable determination of facts in light

of the evidence presented in State court

proceedings. (emphasis added) (West Supp.

1997).

3 careful and exhaustive analysis of the district court in its ruling

denying habeas relief and dismissing the petition satisfies us that

petitioner’s claim was “adjudicated on the merits” in State court

proceedings and that the resulting decisions were not contrary to,

a nd did not involve an unreasonable application of, clearly

established federal law as determined by the Supreme Court of the

United States, and did not result in a decision that was based on

an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.

The overwhelming evidence of guilt in this case indicates that

the petitioner planned to kidnap the victim and extort a

significant monetary ransom from her husband and that the

petitioner murdered the victim in her home by shooting her in the

head six times. No claim of factual innocence of the petitioner in

this 1985 murder is even remotely suggested. All of petitioner’s

many claims made in these proceedings, which have dragged on for

over eleven years, have been rejected

—— and correctly so. In this

last effort for relief, we perceive the petitioner’s claims to be

meritless on their face.

First, the petitioner claims that his execution would violate

the Eighth Amendment’s prohibition against cruel and unusual

punishment in light of the three previous dates the State set for4

carrying out the petitioner’s capital sentence. The petitioner

alternatively argues that the length of h is stay on death row ——

over eleven years

—— constitutes cruel and unusual punishment

entitling him to relief. But the petitioner’s challenges under the

Eighth Amendment do not affect the validity of his conviction or

sentence and they are thus not cogn izable as a basis for relief

under federal habeas corpus. 28 U.S.C. § 2254 (Supp. 1996).

Furthermore, the relief that the petitioner seeks is barred by the

principles enunciated i n T eague v. Lane

, 109 S.Ct. 1060, 1075

(1989).

Next, the petitioner asse rts that his counsel rendered

ineffective assistance during the g uilt phase of his trial.

Strickland v. Washington

, 104 S.Ct. 2052, 2065-68 (1984). The

state court correctly determined, however, that the petitioner

failed to d emonstrate any prejudice resulting from his counsel’s

allegedly deficient investigatory and trial tactics. Strickland

,

104 S.Ct. At 2068 (“The defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional

error, the result of the proceeding would have been different.”).

Finally, the petitioner alleges that the State elicited false

testimony at the trial and knowingly allowed such testimony to

stand in viol ation of the precepts set out in G iglio v. United

States , 92 S.Ct. 763, 766 (1972), and Brady v. Maryland , 83 S.Ct.

1194, 1197 (1963). To obtain relief under Giglio , the petitioner

must demonstrate (1) that the testimony was false; (2) that the5

government knowingly offered the false testimony; and (3) that the

false testimo ny was material, that is, that “it is reasonably

likely that the truth would have affected the outcome of the

trial.” I d. Without addressing whether the petitioner has

established the fir st two prongs, he has failed totally to

demonstrat e the materiality of the allegedly false testimony.

Therefore, each of the petitioner’s claims for relief lack any

possible merit.

Petitioner’s post-AEDPA petition seeking habeas relief was

properly denied. Moreover, for purposes of COA, petitioner has

failed to make a “substantial showing of the denial of a

constitutional right,” i.e., the issues presented are not debatable

among jurists of reason, so petitioner has failed t o justify

issuance of a COA as well.

IT IS FURTHER ORDERED that, considering the foregoing

denial of petitioner’s application for COA, his petition for stay

of execution is denied. The merits of his petitions for a writ of

habeas corpus and for a stay of execution have not presented a

substantial case; neither have they made a substantial showing of

the denial of a federal right.

COA DENIED; APPEAL DISMISSED; STAY OF EXECUTION DENIED.

EMILIO M. GARZA, Circuit Judge, dissenting:

This matter, reviewed and decided in less than a da y, is a2 While the majority opinion is correct that we have been

tracking Gosch’s direct and collateral appeals in state and federal

court for several years, see McFarland v. Scott, 512 U.S. 849, 852

n.1 (1994) (discussing Gosch’s previously filed “skeletal” habeas

petition and previous Texas policy in death penalty cases), none of

the panel members, to my knowledge, have reviewed the state court

record or state habeas evid entiary hearing in light of issues

number 2 and 3, Gosch’s ineffective assistance of counsel and his

false testimony claim.

6 prime example of the tail of a pending execution wagging this

panel’s dog. 2 Although I agree that a preliminary review of

G osch’s habeas application and motion for a stay of execut ion

suggests that it lacks merit, this court should be more reticent in

deciding any death penalty case so quickly )) especially one in which

the merits have not been previously reviewed by an appellate court.

A thorough and comprehensive review of the record, the briefs, and,

in my opinion, oral argument, is required after the passage of

AEDPA.

Clearly we have violated Chief Justice Rehnquist’s admonition

that “Capital cases should be subject to one complete and fair

course of collateral review in the state and federal system, free

from the time pressure of impending execution.” S ee Judicial

Conference of the United States, Ad Hoc Committee on Federal Habeas

Corpus in Capital Cases, Committee Report and Proposal at 6 (Aug.

23, 19 89) (retired Justice Powell presiding); c f. McFarland v.

Scott , 512 U.S. 849, 857-58 (1994) (appointment of counsel on the

eve of an execution date “would have been meaningless” unless the

execution was stayed; “the right to counsel necessarily includes a7

right for that counsel meanin gfully to research and present a

defendant’s habeas claims.”). This case is not frivolous. At a

minimum, issues number 2 and 3 )) whether Gosch received ineffective

assistance o f counsel and whether the State knowingly permitted

false testimony )) require thorough review of the underlying record.

See Mercer v. Armonstrout , 864 F.2d 1429, 1431-32 (8th Cir. 1988)

(“If the petition is not frivolous on its face, the very essence of

this court’s duty is to study and research the points raised

. The

severity and finality of the death penalty requires the utmost

diligence a nd scrutiny of the court. . . . No judge can digest,

retain, o r apply these principles to a voluminous state court

record without reflective study and analysis. To suggest that a

life or death decision can be made by simply reading a petition is

to advocate dereliction of judicial duty.”) (emphasis in original).

I would, therefore, grant the stay of execution and hold in

abeyance any ruling on a COA until a thorough review of the record

is performed in light of the specific issues before us.