IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60103

Summary Calendar

TERRY DORA,

Petitioner - Appellant

v.

MISSISSIPPI DEPARTMENT OF CORRECTIONS; WARDEN FLORENCE

JONES; LAWRENCE KELLY,

Respondents - Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:08-CV-170

Before BARKSDALE, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

Pursuant to a certificate of appealability (COA) granted by the district

court, Terry Dora, Mississippi prisoner # R2153, challenges the denial of his 28

U.S.C. § 2254 habeas petition. It challenged his jury-trial conviction for

possession of more than 30 grams of cocaine, for which he was sentenced to 60-

years’ imprisonment. 

United States Court of Appeals

Fifth Circuit

F I L E D

June 11, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. 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 5TH CIR.

R. 47.5.4.

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No. 11-60103

Dora moved our court to expand the COA to include additional claims

addressed in his brief, but our court denied that motion. Therefore, our court

has jurisdiction to review only the two claims of prosecutorial misconduct that

the district court certified. 28 U.S.C. § 2253(c); Carty v. Thaler, 583 F.3d 244,

266 (5th Cir. 2009). 

Dora contends the district court erred in rejecting his claim that the

prosecutor’s closing argument violated his Fifth Amendment privilege against

self-incrimination. A prosecutor’s comment on defendant’s decision not to testify

warrants habeas relief only if it “had substantial and injurious effect or influence

in determining the jury’s verdict”. Brecht v. Abrahamson, 507 U.S. 619, 627

(1993) (internal quotation marks and citation omitted); see also Fry v. Pliler, 551

U.S. 112, 120 (2007) (holding Brecht harmless-error standard “subsumes”

deference owed under § 2254(d) to state court’s denial of such constitutional

claim on merits). In the light of the evidence presented at his trial, Dora failed

to make such a showing. 

Although he contends the closing argument also violated the Mississippi

Constitution, “federal habeas corpus relief does not lie for errors of state law”. 

E.g., Estelle v. McGuire, 502 U.S. 62, 67 (1991) (internal quotation marks

omitted). In addition, Dora contends, for the first time in his reply brief, that the

prosecutor made other improper comments. “This court does not entertain

arguments raised for the first time in a reply brief.” United States v. Ramirez,

557 F.3d 200, 203 (5th Cir. 2009). 

Relying on Brady v. Maryland, 373 U.S. 83 (1963), Dora contends the

State violated his due-process rights by failing to inform him prior to trial that

a witness intended to incriminate Dora and to recant her previous statement

that the cocaine in question belonged to her. Dora does not, however, dispute

the district court’s finding that the State disclosed the witness’ initial statement. 

The Brady rule “applies only to impeachment and exculpatory evidence; neutral

or inculpatory evidence lies outside its coverage”. United States v. Nixon, 881

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No. 11-60103

F.2d 1305, 1308 (5th Cir. 1989). In addition, evidence is material and therefore

subject to disclosure under Brady “only if there is a reasonable probability that,

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

would have been different”. United States v. Bagley, 473 U.S. 667, 682 (1985). 

Dora fails to show the district court erred in ruling that the witness’ intent to

incriminate Dora fell outside the scope of Brady. 

AFFIRMED.

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Case: 11-60103 Document: 00511882652 Page: 3 Date Filed: 06/11/2012