United States Court of Appeals

Fifth Circuit



## FILED

December 7, 2004

Charles R. Fulbruge III

Clerk REVISED DECEMBER 8, 2004

In the



# United States Court of Appeals

for the Fifth Circuit

_______________



### m 03-11194

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### B RUCE 

### C ARNEIL 

### W EBSTER



### ,

Defendant-Appellant



### .

_________________________

Appeal from the United States District Court

for the Northern District of Texas



### m 4:00-CV-1646-Y

_________________________

Before S MITH , W IENER

, and B ARKSDALE

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

Bruce Webster requests a certificate of appealability ( “ COA”) for issues the district court, which grante d a COA on two issues,

deemed unworthy of collat eral review. Because Webster has failed to make a substantial

showing of the denial of a constitutional right,

we deny his application.

I.

In 1996, a federal jur y co nvicted Webster2

of, and sentenced him to death for, three offenses 

### SS kidnaping resulting in death, conspiring to kidnap, and using and carrying a firearm

during a crime of violence 

### SS for his role in the

s h ocking and exceedingly brutal kidnaping,

rape, and murder of sixteen-year-old Lisa

Rene. 1 We affirmed the conviction and sentenc e on direct appeal, s ee United States v.

Webster

, 162 F.3d 3 08 (5th Cir. 1998), cert.

denied , 528 U.S. 829 (1999).

In September 2000 Webster filed a motion

to vacate his conviction and sentence pursuant

to 28 U.S.C. § 2255, and an amended § 2255

m otion challenging his conviction and sentence

on sixteen

grounds i n August 2002. The

distric t court rejected Webster’s claims and

dismissed his petition. See Webster v. United

States

, No. 4:00-CV-1646-Y, 2 003 WL

23109787 (N.D. Tex. Sept. 30, 2003).

Webster subsequently filed (in the di stri ct

court) an application for a COA on all grounds

raised in his § 2255 motion. In January 2004,

the d ist rict court issued a COA limited to

Webster ’ s claims that (1) his mental retardation renders him ineligible for the death penalty

and (2) the evidence was insufficie nt to warrant the fi nding t hat he is not mentally retarded. 2 Webst er thereafter filed the instant

application with this court expressly limit ed (as

is the government’s brief in opposition) to

requesting a COA on the iss ues not certified by the district court. 3

II.

A defendant may not appeal a final order in

a § 2255 proceeding unless a circuit justice or

judge issues a COA. S ee 28 U.S.C. § 2253(c)-

(1)(B). To obtain a COA, Webster must make

a “substantial showing of the denial of a constitution a l right.” 28 U.S.C. § 2253(c)(2). 4

He must demonstrate that “jurists o f reason

could disagree with the district court’s resolution of his constitutional claims or that jurists

could conclude the issues presented are adequat e to deserve encouragement to proceed

further.” M iller-El

, 537 U.S. at 327 (citing

Slack , 529 U.S. at 484).

In determining whether to grant a COA, we

are limit ed “to a threshold inquiry into the underlying merit of [Webs t er’s] claims.” I d.

“This threshold inquiry does not require f ull

consideration of the factual and legal bases adduced in support of the c laims.” I d. at 336.

Instead, our determination is based on “an

overview o f t he claims in the habeas petition

and a general assessment of their merits.” Id.

In death penalty cases, “any doub ts as to

whether a COA should issue must be resolved

in [petitioner’s] f

avor.” H ernandez v. Johnson , 213 F.3d 243, 248 (5th Cir. 2000).

1 The facts are set forth in detail in United

States v. Webster

, 162 F.3d 308, 317-19 (5th Cir.

1998).

2 Although the claims on which the district court

granted a COA are not presently before us, we note

that Webster’s claim that the evidence at trial was

insuff icient to warrant the district court’s finding

that he is not mentally ret arded was raised and

rejected on direct appeal. See id. at 352-53. 3 See United States v. Kim ler , 150 F.3d 429,

431 & n.1 (5th Cir. 1998) (stating tha t defendant

must expressly seek COA on additional issues not

certified by district court).

4 See Miller-El v. Cockrell

, 537 U.S. 322, 327

(2003); S lack v. McDaniel

, 529 U.S. 473, 48 3

(2000).3 III.

A.

Before the jury retired for deliberations at

the penalty ph a se, the district court excused

juror Albert Fox and el evat ed an alternate.

Webster alleges that the court committed constitutional error in replacing the dismissed juror with an alternate. Because this claim was

raised and rejected on direct appeal, see Webster

, 162 F.3d at 345-47, the dist rict court

properly held that Webster was barred from

raising it on collateral re view. 5 We therefore

deny a COA on this issue.

B.

After imposing a death sentence on the verdict, the district court entered a factual finding

that Webster is not me nt ally retarded and is

therefore not immune from the de a th penalty

under 18 U.S.C. § 3596(c). 6 Webster chal lenged this finding on direct appeal, cla iming

that the statutor y

scheme precluded factfinding

by the co urt absent the defendant’s motion,

and that the court acted without n oti ce,

t hereby depriving him of due process. Reviewing the statutory challenge for plain error

as a result of Webster’s failu re to obj ect, and

the due process claim de novo

, we rejected

both claims. S ee Webster

, 162 F.3d at 351-52.

Relying on A

pprendi v. New Jersey

, 530

U.S. 466 (2000), and R ing v. Arizona

, 536

U.S. 584 (2002), Webster sought habeas relief,

asserting that he has a due process right to

have the jury make the determination as to retardation. 7 The district court denied relief,

concluding that App rendi does not retroactively apply to init

ial habeas petitions under

§ 2255 and that the absence of mental retardation is not an element of the sentence constitutionally required to be found by the jury.

Webster seeks a COA on this claim.

Webster has not made the requisite showing

of the deni al o f a constitutional right in this

instance. As an initial mat ter, the procedural

rule announced in Apprendi is not retroactively

applicable to init

ial ha beas petitions under § 5 See, e.g.

, United States v. Kalish

, 780 F.2d

506, 508 (5th Cir. 1986) (“It is settled in this Circuit that issues raised and disposed of in a previous

appeal from an original judgment of conviction are

not considered in § 2255 motions.”); United States

v. Rocha , 109 F.3d 225, 229 (5th Cir. 1997).

6 T he district court’s factual finding, entitled

Factual Finding Reg arding Mental Retardation,

states, “Webster is not mentally retarded and . . .

he possesses the re quisite mental capacity to understand the death penalt y and why it will be imposed on him. As a result, the defendant Webster

is not exempt under 18 U.S.C. § 3596(c) from impleme ntation of the death penalty.” Section

3596(c) provides:

A sentence of death shall not be carried out upo n a person who is mentally retarded. A sentence of death shall not be carrie d out upon a

person who, as a re s ult of mental disability,

lacks the mental capacity to understan d the

death penalty and why it was imposed on that

(continued...) 6 (...continued)

person.

7 In Apprendi

, 530 U.S. at 490, the Court held

that “any fact [other than the fact of a prior conviction] that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable

doubt.” In R ing , 536 U.S. at 589, the Court extended the rule announc ed in A pprendi to capital

cases: “Capital defendants, no less than noncapital

defendants, we conclude, are entitled to a jury det ermination of any fact on which the legisla ture

conditions an increase in their maximum pun ishment.”4

22 55. See United States v. Brow n , 305 F.3d

304, 309 (5th Cir. 2002). Although this court

has yet to determine whethe r R ing applies

retroactively, because “the rule in Ring is

essentially an application of Apprendi , logical

consistency sugges t s that the rule announced

in Ring is not retroactively applicable.” In re

Johnson

, 334 F.3d 404, 405 n.1 (5th Cir.

2003). 8

Even assuming arguendo that Ring applies

retroactively, “neither Ring [nor] Apprendi

. . . render[s] the absence of mental retardati on the

functional equivalent of an elemen t of capi tal

mur der which the state must prove beyond a

reasonable doubt.” I

d. at 405 (emphasis added). 9 Thus, because A

pprendi does not apply

retroactively to Webster’s init ial § 2255 mot ion, and Ring

, even if retroactive, does no t

render the absence of mental retardati on an element of the sentence that is con s titutionally

required to be determined by a jury, W ebster

has failed to make the requisite showing. We

deny a COA on this issue.

C.

Webster contends that his trial counsel provided ineffective assistance of cou nsel under

the Sixth Amendment. He alleges the following specific deficiencies: (1) Counsel failed t o investigate and present additional evidence demonstrating mental retardati on and the extreme abuse Webster suffered as a child;

(2) Counsel fa iled to investigate and present ( fo r purposes of mitigation and impeachment) evidence of racial discrimi nation in Webster’s Arkansas school district;

(3) Counsel allowed a “breakdown in communication and a dispute over money with

the mitigation specialist” to affect the sentencing phase of trial; and

(4) Counsel failed to object t o the di stri ct

court’s factual findi n g regarding mental

retardation.

To make a substantial showing of the denial

of his Sixth Amendmen t right to reasonably

effective assistance of counsel, Webster must

satisfy Strickland v. Washington

, 466 U.S. 668

(1984). Thus, he must demonstrate “that

counsel’s performance was deficie n t,” id. at

687, and that “the deficient performance prejudiced . . . [his] defense,” id.

To establish deficient performance, a petitioner “must show th at counsel’s representation fell below an objective standard of reasonableness.” Id. at 687-88. Judicial scrutiny of

counsel’s performance mustbe “highly deferential,” id. at 689, and we must make every

effort “to eliminat e th e distorting effects of

hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate

the conduct from counsel’s perspective at the

time,” i d. There is a “strong presumption that

counsel’s conduct falls within the wid e range

of reasonable professional assistance.” Id.

To establish prejudice, a petitioner “must 8 See also Ring

, 536 U.S. at 620-21 (O’Connor,

J., dissenting) (opining that Ring ’s impact would

be red uced by T

eague ’s non-retroactivity principle). See Teague v. Lane , 489 U.S. 288 (1989).

9 See also Ring

, 53 6 U.S. at 609 (noting that

jury finding is constitutionally required for aggravating factors that operate as “the functional equivalent of an element of a greater offense”); Johnson

, 334 F.3d at 405 (“[T]he absence of mental retardation is not an element of the sentence any more than

sanity is an element of an offense.”).5

show that there is a reasonable probability

that, but for counsel’s unprofessional errors,

the result of the proceeding would have been

different. A reasonable probability is a probabilit y sufficient to undermine confidence in the

outcom e.” I

d. at 694. The di stri ct court’s

denial of relief is not debatable among jurists

of reason, even on threshold review, so we

deny a COA on these claims.

1.

Webster c o nt ends that his trial counsel

were ineffective in f

ailing to investigate and

present additional mitigating evidence demonstrating me n tal retardati on and the extreme

abuse he suffered as a child. The district court

denied habeas relief, characterizing thi s ineffective assistance claim as one of degree 

### SS i.e.,

Webster does not allege that counsel utterly

failed to present evidence of mental retardati on

and child abuse but, instead, that counsel were

ineffective for failing to investigate and present

enough of such evidence. After engaging in an

exhaustive review of the trial record, the

district court determined that defense counsel

presented a sig nificant amount of such evidence; and, although more of the same or

simi l ar evidence could have been furnished,

coun sel were not constitutionally ineffective

for failing to present more of the same.

Indeed, our review of the trial record confirms that Webs t er’s counsel were far from

constitutionally ineffective in investigating and

presenting evidence of his men t al condition

and the abus e he suffered as a child. During

th e punishment phase, counsel presented

lengthy and detailed testimony from four

medical experts regarding Webster ’s mental

capacity 10 and the testimony of a fifth medical expert on surrebuttal to critique the methodology used by one of the government’s experts

in testing Webster’s cognitive abilities.

Moreover, counsel pres e nted substantial

evidence of th e abuse Webster suffered as a

child, including testimony fro m his mother,

two of his brothers, two of his sisters, an aunt,

a niece, and an ex-girlfriend. All of these witnesses testified abo ut t he severe physical and

sexual abuse that Webster’s father inflict ed on

his ch ildren and his wife (Webster’s mother).

1 0 Raymond Finn, a clinical psychologist, tes-

(continued...) 10 (...continued)

tified t ha t he had examined Webster on two occasions, first in 1995 and again immediate l y preceding trial, and believed him to be mildly retarded

or in what he termed the educable r a nge of the

mentally retarded. Denis Keyes, a certified school

psychologist, a Ph.D. in special education, and a

professor of special education at the College of

Charleston, testified tha t, based on Webster’s

scores on I.Q. and adaptive skills tests, he believed

Webster to be mentally ret arded. Mark Cunningha m, a clinical and forensic psychologist,

testified that he had examined Webster and had

d ia gnosed him with several psychological disorders, including mild variety mental retardation,

anti-social personality disorder, and a non-specific

personality disorder invo lving narcissistic and

dependant features.

Robert Fulbright, a clinical neuropsychologist,

testified at length about the battery of tests he had

administered to Webster, measuring numerous

cognitive functions, including, inter alia

, Webster’s attention; concentration; f lexibility of

thought; problem-solving skills; language functioning; academic abilities; selected sensory and motor

functioning; visual-facial skills; and verbal and

visual memory. Fulbright stated that Webster’s

test results indicated significant de ficits in cognitive

functioning consistent with a findi ng of mental

retardation (or someone who had suffere d some

type of organic brain injury).6

These witnesses recounted graphic and violent

stories of sexual abuse; weekly beatings with

hoses, fan belts, and extension cords; and various other forms of torture, including electric

shock and burning. Even further, counsel pres ented testimony from an officer of the ju venile court in Arkansas that removed one of

Webster’s siblings from the home because of

abuse.

In light of this substantial body of evidence

and the pre-trial investigation its presentation

required, Webster’s generalized allegation that

more evidence of mental retardati on and child

abuse should have been presented is arguably

frivolous. In any event, it is insufficient to

demonstrate objectively deficient performance

by counsel. 11 Because Webster has failed to

make the requisite showing of deficie nt performa nce, we need not address the prejudice porti on of the Washington inquiry. 12 We deny

a COA on this ineffective assistance claim.

2.

Webster faults his trial counsel for failing to

investigate and pr esent evidence of racial

discrimination allegedly existing in the district

where he attended school. Webster claims it is

vit ally impor tant for counsel to dem onstrate

that the reason he w as not enrolled in special

education courses was the district’s racially

discriminatory

practice of not placing black

students in such courses even when necessary,

and not because he did not qualify. Had such

evidence been presented, Webster contends, it

would have effectively countered the governm ent ’s assertion that he is not mentally retarded.

In denying habeas relief, the district court

concluded that Webster had failed to establish

e ither prong of the Washington standar d on

this claim. Significantly, the court disagreed

w it h Webster about the salience of the evidence. First, the court observed that the government disputed Webst er’s claim of mental

retardati on primarily through the testimony of

its medical experts, cross-examination of 11 See, e.g.

, Dowthitt v. Johnson

, 230 F.3d 733,

743 (5th Cir. 2000) (stati ng that the deferential

review mandated by Washington requires courts to

be “particularly wary” of claims that counsel failed

t o present “enough” evidence on a certain is sue);

Kitchens v. Johnson , 190 F.3d 698, 703 (5th Cir.

1999) (“Did counsel investigate enoug h? Did

counse l present enough mitigating evidence?

Those questions are

even less susceptible to judicial second-guessing.”); Prejean v. State

, 889 F.2d

139 1, 1398–99 (5th Cir. 1990) (“Although it is

possible that [trial counsel] could h ave produced

more of th e sa me type of [mental capacity] evidence

. . . such detail is not required by [ Washington ].”); see also Wilson v. Ozmint , 352 F.3d 847,

861–62 (4th Cir. 2003) (finding counsel’s decision

not to present additional mitigating evidence reasonable in light of counsel’s belief that “their best

mitigation evidence had been presented,” and “that

the additional evidence would only have detracted

from the power of the mitigation evidence that they

had already presented”). 12 See, e.g.

, Dowthitt

, 230 F.3d at 745 (assuming, arguendo

, deficient performance and rejecting

ineffective assistance claim on prejudice grounds)

(citing Buxton v. Lynaugh

, 879 F.2d 140, 142 (5th

Cir. 1989) (“[ Washington ] allows the habeas court

to look at either prong first ; if either one is found

dispositive, it is not necessary t o address the

other.”)); Murray v. Mag i o

, 736 F.2d 279, 282

(5th Cir. 1984) (“[I]n addressing [an ineffective

assistance] claim, we need not approach the inquiry

in any particular order or even address both stages

of the inquiry if an insufficient showing is made as

to one. A claim may be disposed of for either

reasonable performance of counsel or lack o f

prejudice, without addressing the other.”).7

Webster’s medical experts, and the testimony

of other witnesses familiar with Webster both

in and out of the prison system. Thus, although certain government witnesses noted

the fact that Webster was not in special education courses, this poi nt was merely incidental

to the government’s case. 13

Second, the district court noted that Webster’s brother Mark testifie d that most of his

brothers were in special education classes, and

Tony Webster ack no wledged that he was in

“resource” classes. Surmising that any evidence t hat the school district did not place

black stude nt s in special education classes

when necessary would have been countered by

such testimony, the court concluded that counsel could not be faulted for failing to pursue

this track.

Even assuming arguendo that counsel’s

failure to investigate and present such evidence

constitutes objectively deficient performance,

the district court’s con clusion that Webster

cannot demonstrate the requisite prejudice is

not debatable. Indeed, in rejecting Webster’s

claim on direct appeal th at t he evidence was

insufficient to warrant the conc lusion that he

was not mentally retarded, this court noted

that “[t]he government pre sented s ubstantial

evidence to support the finding.” W ebster

, 162 F.3d at 353 (emphasis added). Consequently, the incremental impeachment value, if

any, of such evidence does not raise a reasonable possibil

it y that, had the evidence been

presented, the o ut come would have been different. 14 We therefore deny a COA on this

ineffective assistance claim.

3.

Webster contends that his trial counsel

were ineffective in allowing a breakdown in

communication and a dispute over fe es wi th

t he mitigation specialist to affect the investigation and presentation of mitigating evidence.

Although the factual basis underlying this

claim differs from his other in e ffective assistance claims, t he substance of the claim remains the same: But for this “breakdown,”

additional mitigating evidence of mental retardation, child abuse, and racial discrimination in

school could have be en discovered and presented.

Webster’s vague and generaliz ed allegations of additional (unspeci fied) evidence of

retardati on and e xt reme child abuse notwithstanding, defense coun sel

presented substantial

qua nt ities of mitigating evidence concerning

retardati on and child abuse. 15 Webster cannot,

13 E.C. Turner, Linda Monk, and Pat Drewett,

a counselor and two teachers, respec tively, from

the junior high sch ool Webster attended, testified

th at, in their opinion, Webster was not mentally

retarded, and noted that he w as not in special education classes. 14 See Washington

, 466 U.S. at 694 (explaining

that the prejudice standard requires demonstration

that, but for challenged performance, “result of the

proceeding would have been different”).

15 The jury’s findings on the statutory and nonstatutory mitigating f

actors proposed by defense

cou nsel demonstrate the point: All twelve jurors

found that Webster “suffered from physical abuse,

emotional abuse, and/or parental neglect during his

upbringing”; six juro rs found that he “grew up in

an atmosphere of violenc e and fear, which has

misshaped his perception as to the acceptability or

necessity of violent co nduct”; four jurors found

that he “is or may be mentally retarded” and “has

low intellectual functioning”; four jurors found that

his level of participation in the commission of the

offense “was attributable, at least in part, to the

(continued...)8

therefore, on threshold review, establish either

deficient performa nce or prejudice for this

claim. We therefore deny a COA on this

ineffective assistance claim.

4.

Webster claims ineffective assistance from

counsel’s failure to object t o the district

court’s factual

finding, discussed above, that

he is not mentally retarded and thus is not exempt from the death penalty under § 3596(c).

The district court disagreed, conclu d ing that

counsel’s failure to object to the finding cannot

be deemed ineffective assistance when it was

not evident, based on the law at the time, that

a potential error had occurred.

At the time of t rial (which is what matters

when as sessi

ng counsel’s performance), 1 6 there

was no law on who has the authority to decide 

### SS court or jury 

### SS

whether a defendant is

mentally retar ded within the meaning of § 3596(c). 17 Thus, there was no legal basis on

which trial counsel could conclude (or even

suspect) that the court had committed error. 18

15 (...continued)

influence of one or more of the other participants

invo l ved in the commission of this crime”; all but

one of the jurors found that he “has the love and

support of his family”; four jurors found that other

defendants, “equally culpable in the crime, will not

be punished by death”; and two jurors found that

Webster “would likely adapt to prison life if he

were sentenced to life imprisonment,” and “can be

controlled in a prison setting.” S ee W ebster , 162

F .3d at 319-20 n.2. In fact, defense counsel pr esented expert testimony to the point that the district

court decided to limit Webster’ s surrebuttal on

cumulativeness grounds. S ee id. at 350

- 51 (rejecting due process challenge to this limitation).

16 See, e.g., Lucas v. Johnson , 132 F.3d 1069,

1078 (5th Cir. 1998) (“The determination whether

the performance of counsel was deficient is based

upon the law as it existed at the time of trial.”). 17 See Webster

, 162 F.3d at 351 (“Webster

alleges the factual finding was in contravention of

the [Federal Death Penalty Ac t’s] statutory

scheme, but the statute fails to address how to

e nsure that the mandate of § 3596(c) is c arried

out.”); id. (noting that “[b]ecause the statute fails

to provide guidance, and no case has addressed this

issue, the law is not pellucid”); id. at 352 (“The

statutory scheme simply does not answer who

decides this issue . . . .”).

18 We suppose that trial counsel could have advanced the statutory argument Webster made on

direct appeal SS

namely, that § 3593(b)(3), which

provides that the court will act as a fact-finder “upon the motion of the defendant and with the approval of the attorney for the government,” precludes any fact-finding by the court absent a motion by defendant. On direct appeal, however, we

rejected this argument, noting that this provision

refers “only to the determina tion of the sentence,

Webster , 162 F.3d at 351, and “in no way implies

that a ll court fact-finding must be on the defendant’s motion,” id. at 351-52.

Trial counsel might also have advanced the other argument made by Webster on direct appeal:

that in the absence of a specific statutory scheme,

the only logical conclusion is that the jury must be

the fact-finder on the issue of mental retardation.

Her e again, however, we rejected this self-styled

“logical” argument, noting that it “ suffers from

gaps in reasoning.” I

d. Thus, even these argume nts, which are based not on any clearly established law, but rather on inferences from the presence and absence other statutory provisions, were

deemed meritless on direct appeal, and thus trial

counsel’s failure t o r aise them cannot form the

basis of a finding of ineffective assistance of counsel. See, e.g., Kimler

, 167 F.3d at 893 (reasoning

that attorney’s failure to raise meritless argum ent

(continued...)9

This dearth of au t ho rity persists even today;

no statutory amend ment or judicial decision

has addressed whether the mental retardation

finding envisi o ned by § 3596(c) is a question

for the court or the jury. Moreover, even i f

t here were a subsequent legal development

holding that the jury is the fact-finder required

by § 3596(c), the admonition to rev iewing

courts to “eliminat e the distorting effects of

hindsight

. . . and to evaluate the conduct from

counsel’s perspective at the time,” Washington

, 466 U.S. at 689, would render Webster’s

claim meritless. 19

It follows, then, that counsel ca nnot be

deemed constitutionally inef fective for failing

to anticipate a “subsequent development,” and

Webster cannot rely on the failure to object as a basis for showi ng deficient performance.

Reasonable jurists cannot disagree with the

district court’ s conclusion that counsel were

not constitutionally ineff

ect ive. We deny a

COA on this ineffective assistance claim.

D.

Webster seeks a COA on his claim that the

prosecution w i

thheld impeachment evidence in

contravention of its due process obligation

under Brady v. Maryland

, 373 U.S. 83 (1963),

and its progeny. The evidence allegedly withheld is the same material Web st er faults his

trial counsel for not investigating and presenting to the jury: alleged racial discrimination in

the district where Webster attended school and

specific evidence of the district’s discriminatory practice of failing to place black students

in special education classes wh en necessary.

As with his ineffective assistance claim, Webster maintains that disclosure of this evidence

wo uld have provided a basis for impeaching

government wi t nesses who testified that he

was not mentally retarded and who noted the

fact that he was not enrolled in special education classes.

The right to due process is violated where,

on request, the government conceals evidence

(exculpatory as well

as impeachment) that is

favorable to the defend ant and material to

guilt o r innocence, irrespective of the good

faith of the prosecution. S ee id. at 87–88;

United States v. Bagley

, 473 U.S . 667, 676

(1985 ); United States v. Ellender , 947 F.2d

748, 756 (5th Cir. 1991). “[E]vidence is materia l o nly if there is a reasonable probability

that, ha d t he evidence been disclosed to the

defense, the result of the proceeding would

have been different. A ‘reasonable probability’

is a probabilit y sufficient to undermine confidence in the outcom e.” B agley

, 473 U.S. at

682. 18 (...continued)

cannot form basis of ineffective assistance claim).

19 See, e.g.

, Lucas

, 132 F.3d at 1078-79 (rejecting clai m of deficient counsel performance “because counsel is not required to a nticipate subsequent developments in th e law”); Organ v. Cockrell , 297 F.3d 349, 360–61 (5thCir. 2002) (holding that failure to object to supplemental mitigating

evidence instruction was not deficient performance

before the issuance of Penry v. Johnson

, 532 U.S.

782 (2001)); Clark v. Collins

, 19 F.3d 959, 965-

66 (5th Cir. 1994) (r ejecting claim of deficient

performance for failure to object to racially-motivated peremptory strikes before issuance of Batson

v. Kentucky , 476 U.S. 79 (1986)); Wiley v. Puckett

, 969 F.2d 86, 102 (5th Cir. 1992) (same); Gray

v. Lucas

, 677 F.2d 1086, 1096 n.9 (5th Cir. 1982)

(holding that failure to o bject to prosecutor’s

interjection of future dangerousness through expert

testimony did not constitute deficient performance

in advance of caselaw discrediting such testimony);

see also United States v. Kleinbart

, 27 F.3d 586,

593 (D.C. Cir. 1994) (holding that failure to

a ppeal jury instruction did not constitute ineffect ive

assistance “[g]iven the unclear state of the law”).10

Relying o n its antecedent conclusion that

Webster could not demons t rate prejudice

from counsel’s failure to discover and present

evidence of the school district’s discriminatory

practices, the district court denied habeas relief

on this claim. Jurists of reason cannot find

debatable or wrong the rejection of Webster’s

Brady claim.

Even as suming, a rguendo

, that Webster can

make t h e threshold showing that the government suppre ssed (and was therefore in possession of) this information, 20 Webster’s claim fails the threshold showing of materiality. “In

assessing the materiality of undisclosed impeachment e vidence, ‘we must consider the

nature of the impeachment evidence improperly w it hheld and the additional evidence . . .

independent of the disputed test imony.’”

Wilson v. Whitley , 28 F.3d 433, 439 (5th Cir.

1994) (quo t ing United States v. Weintraub

, 871 F.2d 1257, 1262 (5th Cir. 1989)).

Although Webster maintains that such evidence could have effectively countered the

government’s positio n that he is not mentally

retarded, our analysis of his related ineffective

20 Webster attempts to make this showing by

vaguely referring to a dese gregation lawsuit prosecuted by the Department of Justice against seven

Arka nsas school districts, including his, in 1970.

See g enerally United States v. Watson Chapel

Sch. Dist. No. 24

, 446 F.2d 933 (8th Cir. 1971)

(consolidated appea l regarding, i nter alia

, order

requir i ng district to implement plan for unitary

scho ol district, and order finding members of

school board guilty of civil contempt for failing to

comply with implementation order ). Webster

maintains that “by virtue of its previous pr osecution of the school district, [the government] was in

possession of evidence which questioned the credibility of their witnesses.” In other words, Webster

seeks to impute to the federal prosecutors trying his

case knowledge of a desegregation lawsuit filed in

the 1970’s against his ch ildhood school district,

from which he claims some impeachment evidence

can be inferred.

Although “the prosecution” for Brady purposes

does encompass more than the individual prosecutor or group of prosecutors trying the case, and the

prosecution may be deemed, in limited circumstances, to be in “constructive possession” of Brady material, see, e.g.

, Martinez v. Wainwright

, 621

F.2d 184, 186-87 (5th Cir. 1980) (finding no suggestion in Brady “that different ‘arms’ of the gov-

(continued...) 20 (...continued)

ernment a r e severable entities”); United States v.

Auten

, 632 F.2d 478, 481 (5th Cir. 1980) (finding

prosecution was in possession of criminal history

of witness even though no backgrou n d check was

conducted) ; United States v. Deutsch , 475 F.2d

55, 57-58 (5th Cir. 1975) (finding prosecutor was,

for purposes of Brady

, in possession of information

in Postal Ser vice files), there are limits on the

imputation of knowledge from on e arm of the

government to prosecutors. “[T]he prosecution is

deemed to have knowledge of information readily

available to i t . . . .” W illiams v. Whitley

, 940

F.2d 132, 133 (5th Cir. 1991) (emphasis added).

If this evidence is deemed “readily available” to

t he prosecutors for purposes of Brady

, we are

hard-pressed to conceive of any information that

would fall outside Brady ’s constitutional mandate

of disclosure. After all, even knowledge of the

scho ol district’s history of segregation would not

lead a reasonable prosecutor where Webster claims

it leads, i.e.

, to question the credibi lity of school

district employees testifying about Webster’s

mental capacity. Thus, Webster’s conclusional

allegation of knowledge is not sufficient to

demonstrate suppression for purposes of Brady

.11

assistance claim obtains equally here. 21 In the

main, the prosecution presented substantial evidence countering Webster’s claim o f mental

retardation, and the government’s effort did

not depend in any significant respect on Webster’s non-enrollm

ent in special education

courses.

To the contrary, beyond cro s s-examining

defense experts, the government pr oduced two

medical experts who testified that they did not

believ e Webster was mentally retarded, and,

primarily, that the me t hodology used by the

defens e experts to gauge his mental capacity

was critically flawed. 22 Moreover, the government presented numerous other witnesses

whose testimony contradicted Webster’s claim

of mental retardation. 23 Thus, the incremental impeachment value, if any (given the conflicting testimony by Webster’s brothers), of such

evidence does not raise a reasonable probability that, had the evidence been di sclosed, the

outcome would have been different. 24

In sum, even indulging (on this threshold

r eview) Webster’s highly attenuated and su s

pect attempt to impute knowledge of this evidence to the prosecutio n, the evidence allegedly withheld is not material. Because jurists

of reason could not find this due process claim

debatable, we deny a COA on this issue.

E.

Webster contends that § 3596(c) is unconstitutionally vague and violates his right to due

pro cess because it fails to provide any guidance on (1) whether the issue of mental retardation is to be decided by the judge or jury; (2)

whether the decision is to be made pretrial or

at sentencing; (3) what is the burden of proof;

and (4) what is the relevant standard f or a

finding of retardation. Although the district

court noted that Webster had fail ed to rai se

t his claim on direct appeal, 2 5 the court nev e r 21 Accord Wilso n , 28 F.3d at 437 n.6 (noting

that Bagley ’s formulation of the materiality standard for Brady claims is derived from Washington

, 466 U.S. at 698).

22 Both government experts, George Parker and

Richard Coons, testified that, i n their opinion,

Webster had an incentive not to perfo r m well on

the cognitive tests administered after he was

charged in this case, and pointed to prior cognitive

tests taken by Webster on which he scored higher.

Parker also testified at length regarding his position

that the so-called “Vineland test” administered by

defense expert Dr. Keyes was an inappropriate and

deceptiv e measure of Webster’s adaptive skills

given Webster’s lifestyle as a drug-dealer.

23 These witnesses included correctional officers

and fellow inmates who testified that, while incarcerated, Webster engaged in various activities

potentially incons istent with a finding of mental

retardation. For example, he wrote letters to fellow

inmates; received letters and newspapers; read

aloud from newspapers; wrote request s l ips for

various s er vices; wrote written grievances; sub-

(continued...) 23 (...continued)

mitted names and addresses of people for his

visitation list; and on one occasion complained because the change he received from the prison

commissary was incorrect.

24 See, e.g.

, Drew v. Collins

, 964 F. 2d 411,

4 19-20 (5th Cir. 1992) (holding that incremental

impeachment value from minor inconsistencies between witness’ taped and written statements did not

satisfy Brady ’s materiality standard).

25 Indeed, as we noted, Webster argued on direct

appeal that the statute did provide sufficient guidance: It entrusted the decision to the jury. As

support for this interpretation, Webster pointed to

(continued...)12

theless proceeded to consider and reject it on

the merits.

Webster may not, however, raise this issue

for the first time on collateral revi e w without

showing both “cause” for his procedural default and “actual prejudice” resulting from the

error. S ee, e.g.

, United States v. Shaid

, 937

F.2d 228, 232 (5th

Cir. 1991) (en banc). He

has neither alleged nor shown caus e and prejudice, so this claim cannot form the basis of a

substantial showing of the denial of a constitutional right. We deny a COA on this issue.

F.

Webster avers that the death sentence was

applied in his case as a result of a “systematic

pattern of racial discrimination” on the part of

the government in viol at ion of the Fifth and

Eighth Amendments. This claim was raised

and rejected on direct appeal. 26 Attempting to breathe new life into it on collateral re view,

Webster relies on new statistical evidence

compiled by the Department of Justice. 2 7

Finding that those statistics are ident ical to

t ho se held insufficient to state a p rima facie

case of selective prosecution in United States

v. Jones

, 2 87 F.3d 325, 332-35 (5th Cir.

2002), the district court rejected this claim.

We agree that the statistics are wh o lly insufficient to meet the threshold requirement

that Webster was singled o ut in the capital

charging decision on the basis of his race, but

that others similarly situated wer e not. Despite citing to new statistical data, Webster has

done no more than repeat his claim of error rejected on direct appeal. Because he has failed

to make the requisite showing of the denial of

a constitutional right, we deny a COA on this

issue.

G.

Webster contends that his due process

r ights were violated by the presentation of

“perj u red and damaging testimony” from codefendants Steven Beckley and Marvin Holloway. He alleges that two post-trial events provide a basis for this clai m: first, that Beckley

told a correctional officer and an in mate that

he had lied at Webster’s trial in an effort to improve his standing with the government; and

second , that Orlando Hall, another co-defendant, received a letter from Holloway stating

that he owed Webster an apology 

### SS a s tatement Webster cites as evidence that Holloway

lied at trial. 25 (...continued)

18 U.S.C. § 3593(b), which provides that the court

will act as a fact-finder “upon the motion of the defendant and with the approval o f the attorney for

the government.” He asserted that this provision

precluded any fact-finding by the court absent the

defe ndant’s motion. S ee Webster

, 162 F.3d at

351-52.

26 Webster argued on direct appeal that the district court erred by denying his motion (which was

based on alleged racial discrimination in the charging decision) to dismiss the government’s notice to

seek the death penalty. In rejecting this claim, we

concluded that Webster had failed to make the

r equisite showing that he was singled out fo r

selective prosecution; that his statistical evidence

was insuffic ient to rebut the good-faith presumption on the part o f the prosecution; and that the

objective circum stances of the crime and the

sufficiency and availability of evidence to the prove

the elements required constituted proper and legitimate non-discriminatory gro unds for seeking the

(continued...) 26 (...continued)

death penalty. See id. at 333-35.

27 See D EP ’ T OF J USTICE : T HE F EDERAL D EATH

P EN ALTY S YSTEM : A S TATISTICAL S URVEY

1988–2000 (2000).13

Th e district court determined that, even if

Webster’s allegations of perjury were accepted

as true, his claim is meritles s given his failure

even to allege that the government knew that

any o f t he testimony given by Beckley or

Holloway was false. 28 Jurists of reason could

not find debatable or wrong the district court’s

rejection of this claim.

“[ I]t is established that a conviction obtained through the use of false evidence,

known to be such by representatives of the

State, must fall under the Fourteenth Amendment

. . . . The same result obtains when the

S t ate, although not soliciting false evidence,

allows it to go uncorrected when it appears.”

United States v. O’Keefe , 128 F.3d 885, 893

(5th Cir. 1997) (quoting Napue v. Illinois

, 360

U.S. 264, 269 (1959) (emphasis added)). To

establish a due process violation based on the

government’s use of false or misleading testimony, Webster must show that (1) the testi

mony in question was actually false; (2) the

testimony was material; and (3) the prosecution had know ledge that the testimony was

false. I d. at 893 (citing United States v. Blackburn , 9 F.3d 353, 357 (5th Cir. 1993)).

As a threshold matter, Webster has failed to

identify even a single specific statement made

by either witness that is false; instead, he offers

only conclusional statements about the ultimate falsity of

Beckley’s and Holloway’s

testimony. Moreover, even if Webster’s allegations of perjury are accurate, his underlying due process claim is not debatable, because

he has failed even to allege that the prosecution knew that any statements made by either

witness were false. 29

Because Webster has failed to identify any

statement that is false, and has not eve n alleged the government knowledge of falsity on

which a due process claim is based, he has not

made a substantial showing of the denial of his

consti t utional right to due process. We deny

a COA on this issue.

H.

Webster seeks a COA on his claim that his

(alleged) mental retardati on renders his execution contrary to binding international law. The

district court rejected this claim on the merits,

concluding that international law affords

Webster no greater relief than does domestic

constitutional relief under the Eighth Amendment as interpreted in Atkins v. Virginia

, 536

U.S. 304 (2002). Jurists of reason could not

disagree or find wrong the district court’s

conclusion in that regard.

Reliance o n t hat conclusion is not necessary, however. Because Webster did not raise

this claim on direct appeal and h as failed to

demonstrate cause and prejudice for this default, in either his § 2255 motion or his COA

application in the district court or with this

court, he may not raise it for the first time on

collateral review. S ee, e.g.

, Shaid

, 937 F.2d at

28 The district court also questioned whether

Webster had presented any evidence demonstrating

that either witness lied at trial. In fact, the court

observed that both Beckley’s alleged statement and

Holloway’s letter could plausibly be read as indications that both men were apologetic about testifying against Webster to improve their own liability

situations and not as admissions of perjury. 29 See, e.g.

, East v. Scott

, 55 F.3d 996 , 1005

(5th Cir. 1995) (holding that al legations failed to

establish prima facie case of Napue violation

where defendant “fails to allege any facts suggesting prosecution knew about” contest ed subject);

see also O’Keefe

, 128 F.3d at 893; Blac kburn

, 9 F.3d at 357.14

232. We deny a COA on this issue.

I.

Webster seeks a COA regarding the district

court’s d enial of his request for discovery. 3 0

He claims that the cou r t abused its discretion

in denying discovery, thereby violating his due

process rights.

A habeas petitione r may “invoke the process of discovery avai lable under the Federal

Rules of Civil Procedure if, and to the extent

that, the judge in the exercise of his discretion

and for good cause shown grants leave to do

so, but not otherwi se.” R ector v. Johnson

, 120 F.3d 551, 5 62 (5th Cir. 1997) (citing

Perillo v. Johnson

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

1996)). “A federal habeas court must allow

discovery and an evidentiary hearing only

where a factual dispute, if resolved in the

petitioner’s favor, would entitle him to relief .

. . .” W ard v. Whitley

, 21 F.3d 1355 , 1367

(5th Cir. 199 4 ). Conclusional allegations are

insufficient to warrant discovery; the petitioner

must set forth specific allegations of fact. Id.

(citing Wi llie v. Maggio , 737 F.2d 1372 (5th

Cir. 1984)).

Webster’s application does not allege a single factual dispute, which, if resolved in his favor, would entitl e him to relief. 3 1 Instead, he merely claims error in the denial of disc o very

and lists the thirteen grounds for relie f on

which he seeks to engage in discovery. His

application thus reflects a desire to use the hab e as corpus discovery mechanism to explore

his case “in search of its existence.” I d. (quoting Aubet v. Maine

, 431 F.2d 688, 6 89 (1st

Cir. 1970)). This court does not, however,

“sanction fishing expeditions based on petitioner’s conclusory allegations.” Rector , 120

F.3d at 562 (citing Perillo

, 79 F.3d at 444 )

. Because Webster has failed to ident ify, with

specific allegations, any dispositive factual disputes, we deny a COA on this issue.

The application to ext end the COA issued

by the district court is in all respects DENIED.

30 During the pendency of his initial § 2255 motion, W ebster requested and was granted permission to file a motion for discovery, which the court

denied.

31 Compare Perillo

, 79 F.3d at 444-45 (finding

error in denial of discovery where habeas petitioner

had stated a specific factual dispute SS whether her

attorney represented another person involved in the

charged crime, and therefore had a con flict of

interest SS which, if resolved in her favor, would

(continued...) 31 (...continued)

entitle her to relief), with Rector , 120 F.3d at 562

(affirming denial of discovery request where habeas petitioner had “failed to make at least a prima

facie showing of what specifically he intends to

prove”).