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

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

BRUCE CARNEIL WEBSTER,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

m 4:00-CV-1646-Y

_________________________

Before SMITH, WIENER, and BARKSDALE,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Bruce Webster requests a certificate of appealability (“COA”) for issues the district

court, which granted a COA on two issues,

deemed unworthy of collateral review. Because Webster hasfailed to make a substantial

showing of the denial of a constitutional right,

we deny his application. 

I.

In 1996, a federal jury convicted Webster
2

of, and sentenced him to death for, three offensesSSkidnaping resulting in death, conspiring to kidnap, and using and carrying a firearm

during a crime of violenceSSfor his role in the

shocking and exceedingly brutal kidnaping,

rape, and murder of sixteen-year-old Lisa

Rene.1 We affirmed the conviction and sentence on direct appeal, see United States v.

Webster, 162 F.3d 308 (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

motion challenging his conviction and sentence

on sixteen grounds in August 2002. The

district court rejected Webster’s claims and

dismissed his petition. See Webster v. United

States, No. 4:00-CV-1646-Y, 2003 WL

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

Webster subsequently filed (in the district

court) an application for a COA on all grounds

raised in his § 2255 motion. In January 2004,

the district court issued a COA limited to

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

and (2) the evidence was insufficient to warrant the finding that he is not mentally retarded.2

 Webster thereafter filed the instant

applicationwiththis court expresslylimited (as

is the government’s brief in opposition) to

requesting a COA on the issues 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. See 28 U.S.C. § 2253(c)-

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

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

He must demonstrate that “jurists of reason

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

could conclude the issues presented are adequate to deserve encouragement to proceed

further.” Miller-El, 537 U.S. at 327 (citing

Slack, 529 U.S. at 484).

In determining whether to grant a COA, we

are limited “to a threshold inquiry into the underlying merit of [Webster’s] claims.” Id.

“This threshold inquiry does not require full

consideration of the factual and legal bases adduced in support of the claims.” Id. at 336.

Instead, our determination is based on “an

overview of the claims in the habeas petition

and a general assessment of their merits.” Id.

In death penalty cases, “any doubts as to

whether a COA should issue must be resolved

in [petitioner’s] favor.” Hernandez 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 thedistrict court

granted a COA are not presently before us, we note

that Webster’s claim that the evidence at trial was

insufficient to warrant the district court’s finding

that he is not mentally retarded was raised and

rejected on direct appeal. See id. at 352-53.

3

See United States v. Kimler, 150 F.3d 429,

431 & n.1 (5th Cir. 1998) (stating that 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); Slack v. McDaniel, 529 U.S. 473, 483

(2000). 
3

III.

A.

Before the jury retired for deliberations at

the penalty phase, the district court excused

juror Albert Fox and elevated an alternate.

Webster allegesthat 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 district court

properly held that Webster was barred from

raising it on collateral review.5 We therefore

deny a COA on this issue.

B.

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

that Webster is not mentally retarded and is

therefore not immune from the death penalty

under 18 U.S.C. § 3596(c).6 Webster chal

lenged this finding on direct appeal, claiming

that the statutory scheme precluded factfinding

by the court absent the defendant’s motion,

and that the court acted without notice,

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

as a result of Webster’s failure to object, and

the due process claim de novo, we rejected

both claims. See Webster, 162 F.3d at 351-52.

Relying on Apprendi v. New Jersey, 530

U.S. 466 (2000), and Ring v. Arizona, 536

U.S. 584 (2002),Webstersought habeasrelief,

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 Apprendi does notretroactively apply to initial habeas petitions under

§ 2255 and that the absence of mentalretardation 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 denial of a constitutional right in this

instance. As an initial matter, the procedural

rule announced inApprendi is notretroactively

applicable to initial habeas 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

 The district court’s factual finding, entitled

Factual Finding Regarding Mental Retardation,

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

he possesses the requisite mental capacity to understand the death penalty 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 implementation of the death penalty.” Section

3596(c) provides:

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

person who, as a result of mental disability,

lacks the mental capacity to understand 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 statutorymaximummust be submitted to a jury and proved beyond a reasonable

doubt.” In Ring, 536 U.S. at 589, the Court extended the rule announced in Apprendi to capital

cases: “Capital defendants, no less than noncapital

defendants, we conclude, are entitled to a jury determination of any fact on which the legislature

conditions an increase in their maximum punishment.”
4

2255. See United States v. Brown, 305 F.3d

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

has yet to determine whether Ring applies

retroactively, because “the rule in Ring is

essentially an application of Apprendi, logical

consistency suggests 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 ofmentalretardation the

functional equivalent of an element of capital

murder which the state must prove beyond a

reasonable doubt.” Id. at 405 (emphasis added).9

 Thus, because Apprendi does not apply

retroactively to Webster’s initial § 2255 motion, and Ring, even if retroactive, does not

render the absence of mentalretardation an element of the sentence that is constitutionally

required to be determined by a jury, Webster

has failed to make the requisite showing. We

deny a COA on this issue.

C.

Webster contendsthat histrial counsel provided ineffective assistance of counsel under

the Sixth Amendment. He alleges the following specific deficiencies:

(1) Counsel failed to investigate and present additionalevidence demonstratingmentalretardation and the extreme abuse Webster suffered as a child;

(2) Counsel failed to investigate and present (for purposes of mitigation and impeachment) evidence of racial discrimination 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 to the district

court’s factual finding regarding mental

retardation. 

To make a substantialshowing ofthe denial

of his Sixth Amendment right to reasonably

effective assistance of counsel, Webster must

satisfyStrickland v. Washington, 466U.S. 668

(1984). Thus, he must demonstrate “that

counsel’s performance was deficient,” id. at

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

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

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

effort “to eliminate the 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,” id. There is a “strong presumption that

counsel’s conduct falls within the wide 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 reduced by Teague’s non-retroactivity principle). See Teague v. Lane, 489 U.S. 288 (1989).

9

See also Ring, 536 U.S. at 609 (noting that

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

334 F.3d at 405 (“[T]he absence of mentalretardation 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 probability sufficient to undermine confidence in the

outcome.” Id. at 694. The district 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 contends that his trial counsel

were ineffective in failing to investigate and

present additional mitigating evidence demonstrating mental retardation and the extreme

abuse he suffered as a child. The district court

denied habeas relief, characterizing this ineffective assistance claimas one of degreeSSi.e.,

Webster does not allege that counsel utterly

failed to present evidence ofmentalretardation

and child abuse but, instead, that counsel were

ineffective for failing to investigate and present

enough ofsuch evidence. After engaging in an

exhaustive review of the trial record, the

district court determined that defense counsel

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

similar evidence could have been furnished,

counsel were not constitutionally ineffective

for failing to present more of the same.

Indeed, our review of the trial record confirms that Webster’s counsel were far from

constitutionallyineffective in investigating and

presenting evidence of his mental condition

and the abuse he suffered as a child. During

the punishment phase, counsel presented

lengthy and detailed testimony from four

medical experts regarding Webster’s mental

capacity10 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 presented substantial

evidence of the abuse Webster suffered as a

child, including testimony from his mother,

two of his brothers, two of hissisters, an aunt,

a niece, and an ex-girlfriend. All of these witnesses testified about the severe physical and

sexual abuse that Webster’s father inflicted on

his children and his wife (Webster’s mother).

10

 Raymond Finn, a clinical psychologist, tes-

(continued...)

10(...continued)

tified that he had examined Webster on two occasions, first in 1995 and again immediately preceding trial, and believed him to be mildly retarded

or in what he termed the educable range 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 that, based on Webster’s

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

Webster to be mentally retarded. Mark Cunningham, a clinical and forensic psychologist,

testified that he had examined Webster and had

diagnosed him with several psychological disorders, including mild variety mental retardation,

anti-social personality disorder, and a non-specific

personality disorder involving 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; flexibility 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

testresultsindicated significant deficits in cognitive

functioning consistent with a finding of mental

retardation (or someone who had suffered some

type of organic brain injury).
6

These witnessesrecounted 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 presented testimony from an officer of the juvenile 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 allegationthat

more evidence of mental retardation and child

abuse should have been presented is arguably

frivolous. In any event, it is insufficient to

demonstrate objectivelydeficient performance

by counsel.11 Because Webster has failed to

make the requisite showing of deficient performance, we need not address the prejudice

portion of the Washington inquiry.12 We deny

a COA on this ineffective assistance claim. 

2.

Webster faults histrial counselfor failing to

investigate and present evidence of racial

discrimination allegedly existing in the district

where he attended school. Webster claims it is

vitally important for counsel to demonstrate

that the reason he was not enrolled in special

education courses was the district’s racially

discriminatory practice of not placing black

studentsin 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 government’s assertion that he is not mentally retarded.

In denying habeas relief, the district court

concluded that Webster had failed to establish

either prong of the Washington standard on

this claim. Significantly, the court disagreed

with Webster about the salience of the evidence. First, the court observed that the government disputed Webster’s claim of mental

retardation 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) (stating that the deferential

reviewmandated by Washington requires courtsto

be “particularly wary” of claimsthat counselfailed

to present “enough” evidence on a certain issue);

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

1999) (“Did counsel investigate enough? Did

counsel present enough mitigating evidence?

Those questions are even less susceptible to judicialsecond-guessing.”); Prejean v. State, 889 F.2d

1391, 1398–99 (5th Cir. 1990) (“Although it is

possible that [trial counsel] could have produced

more of the same 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] allowsthe habeas court

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

dispositive, it is not necessary to address the

other.”)); Murray v. Magio, 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 of

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 point was merely incidental

to the government’s case.13 

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

brothers were in special education classes, and

Tony Webster acknowledged that he was in

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

black students in special education classes

when necessarywould 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 presentsuchevidence

constitutes objectively deficient performance,

the district court’s conclusion that Webster

cannot demonstrate the requisite prejudice is

not debatable. Indeed, in rejecting Webster’s

claim on direct appeal that the evidence was

insufficient to warrant the conclusion that he

was not mentally retarded, this court noted

that “[t]he government presented substantial

evidence to support the finding.” Webster,

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

any, of such evidence does not raise a reasonable possibility that, had the evidence been

presented, the outcome 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 fees with

the mitigation specialist to affect the investigationand presentationofmitigating evidence.

Although the factual basis underlying this

claim differs from his other ineffective assistance claims, the substance of the claim remains the same: But for this “breakdown,”

additional mitigating evidence of mentalretardation, child abuse, and racialdiscrimination in

school could have been discovered and presented. 

Webster’s vague and generalized allegations of additional (unspecified) evidence of

retardation and extreme child abuse notwithstanding, defense counsel presented substantial

quantities of mitigating evidence concerning

retardation and child abuse.15 Webster cannot,

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

a counselor and two teachers, respectively, from

the junior high school Webster attended, testified

that, in their opinion, Webster was not mentally

retarded, and noted that he was 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 factors proposed by defense

counsel demonstrate the point: All twelve jurors

found that Webster “suffered from physical abuse,

emotional abuse, and/or parental neglect during his

upbringing”; six jurors found that he “grew up in

an atmosphere of violence and fear, which has

misshaped his perception as to the acceptability or

necessity of violent conduct”; four jurors found

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

lowintellectualfunctioning”;four jurorsfound 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 performance 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 to 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, concluding that

counsel’sfailure 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 trial (which is what matters

whenassessing counsel’s performance), 16there

was no law on who has the authority to decideSScourt or jurySSwhether a defendant is

mentally retarded 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

involved 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.” See Webster, 162

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

court decided to limit Webster’s surrebuttal on

cumulativeness grounds. See 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 Act’s] statutory

scheme, but the statute fails to address how to

ensure that the mandate of § 3596(c) is carried

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 appealSSnamely, that § 3593(b)(3), which

providesthat 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 determination of the sentence,

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

that all 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.

Here again, however, we rejected this self-styled

“logical” argument, noting that it “suffers from

gaps in reasoning.” Id. Thus, even these arguments, 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 to raise 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 argument

(continued...)
9

This dearth of authority persists even today;

no statutory amendment or judicial decision

has addressed whether the mental retardation

finding envisioned by § 3596(c) is a question

for the court or the jury. Moreover, even if

there were a subsequent legal development

holding that the jury is the fact-finder required

by § 3596(c), the admonition to reviewing

courts to “eliminate 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 cannot be

deemed constitutionally ineffective for failing

to anticipate a “subsequent development,” and

Webster cannot rely on the failure to object as

a basis for showing deficient performance.

Reasonable jurists cannot disagree with the

district court’s conclusion that counsel were

not constitutionally ineffective. We deny a

COA on this ineffective assistance claim. 

D.

Webster seeks a COA on his claim that the

prosecutionwithheld 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 Webster faults his

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

the district whereWebster attended school and

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

in special education classes when necessary.

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

would have provided a basis for impeaching

government witnesses 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 defendant and material to

guilt or innocence, irrespective of the good

faith of the prosecution. See id. at 87–88;

United States v. Bagley, 473 U.S. 667, 676

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

748, 756 (5thCir. 1991). “[E]vidence is material 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. A ‘reasonable probability’

is a probability sufficient to undermine confidence in the outcome.” Bagley, 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 claim of deficient counsel performance “because counsel is not required to anticipate subsequent developments in the law”); Organ v. Cockrell, 297 F.3d 349, 360–61 (5th Cir. 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) (rejecting claim of deficient

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

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 object to prosecutor’s

interjection offuture dangerousnessthrough expert

testimony did not constitute deficient performance

in advanceof caselawdiscrediting such testimony);

see also United States v. Kleinbart, 27 F.3d 586,

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

appealjury instruction did not constitute ineffective

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

Relying on its antecedent conclusion that

Webster could not demonstrate prejudice

from counsel’s failure to discover and present

evidence ofthe schooldistrict’s discriminatory

practices, the district court denied habeasrelief

on this claim. Jurists of reason cannot find

debatable or wrong the rejection of Webster’s

Brady claim. 

Evenassuming, arguendo, that Webster can

make the threshold showing that the government suppressed (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 evidence, ‘we must consider the

nature of the impeachment evidence improperly withheld and the additional evidence . . .

independent of the disputed testimony.’”

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

1994) (quoting 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 position that he is not mentally

retarded, our analysis of hisrelated ineffective

20 Webster attempts to make this showing by

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

Arkansas school districts, including his, in 1970.

See generally United States v. Watson Chapel

Sch. Dist. No. 24, 446 F.2d 933 (8th Cir. 1971)

(consolidated appeal regarding, inter alia, order

requiring district to implement plan for unitary

school 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 prosecution of the school district, [the government] was in

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

seeksto impute to the federal prosecutorstrying his

case knowledge of a desegregation lawsuit filed in

the 1970’s against his childhood 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 are 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 background check was

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

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

for purposes ofBrady, in possession ofinformation

in Postal Service files), there are limits on the

imputation of knowledge from one arm of the

government to prosecutors. “[T]he prosecution is

deemed to have knowledge of information readily

available to it . . . .” Williams v. Whitley, 940

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

If this evidence is deemed “readily available” to

the 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

school district’s history of segregation would not

lead a reasonableprosecutor whereWebster claims

it leads, i.e., to question the credibility 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 prosecutionpresented substantialevidence countering Webster’s claim of mental

retardation, and the government’s effort did

not depend in any significant respect on Webster’s non-enrollment in special education

courses. 

To the contrary, beyond cross-examining

defense experts, the government produced two

medical experts who testified that they did not

believe Webster was mentally retarded, and,

primarily, that the methodology used by the

defense experts to gauge his mental capacity

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

whose testimonycontradictedWebster’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 disclosed, the

outcome would have been different.24 

In sum, even indulging (on this threshold

review) Webster’s highly attenuated and suspect attempt to impute knowledge of this evidence to the prosecution, 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 hisright to due

process because it fails to provide any guidance on (1) whether the issue of mental retardation isto 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 for a

finding of retardation. Although the district

court noted that Webster had failed to raise

this claim on direct appeal,25the court never

21 Accord Wilson, 28 F.3d at 437 n.6 (noting

that Bagley’s formulation of the materiality standard for Brady claimsis derived fromWashington,

466 U.S. at 698). 

22 Both government experts, George Parker and

Richard Coons, testified that, in their opinion,

Webster had an incentive not to perform 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

deceptive 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 inconsistent with a finding of mental

retardation. For example, he wrote letters to fellow

inmates; received letters and newspapers; read

aloud from newspapers; wrote request slips for

various services; 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,

419-20 (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 review without

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

error. See, e.g., United States v. Shaid, 937

F.2d 228, 232 (5th Cir. 1991) (en banc). He

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

substantialshowing ofthe 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 violation 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 review,

Webster relies on new statistical evidence

compiled by the Department of Justice.27

Finding that those statistics are identical to

those held insufficient to state a prima facie

case of selective prosecution in United States

v. Jones, 287 F.3d 325, 332-35 (5th Cir.

2002), the district court rejected this claim.

We agree that the statistics are wholly insufficient to meet the threshold requirement

that Webster was singled out in the capital

charging decision on the basis of his race, but

that others similarly situated were 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

rights were violated by the presentation of

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

told a correctional officer and an inmate that

he had lied at Webster’strial 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 apologySSa statement 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 of the attorney for

the government.” He asserted that this provision

precluded any fact-finding by the court absent the

defendant’s motion. See 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

requisite showing that he was singled out for

selective prosecution; that his statistical evidence

was insufficient to rebut the good-faith presumption on the part of the prosecution; and that the

objective circumstances of the crime and the

sufficiency and availability of evidence to theprove

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

(continued...)

26(...continued)

death penalty. See id. at 333-35.

27 See DEP’T OFJUSTICE:THE FEDERALDEATH

PENALTY SYSTEM: A STATISTICAL SURVEY

1988–2000 (2000).
13

The district court determined that, even if

Webster’s allegations ofperjurywere accepted

as true, his claim is meritless given his failure

even to allege that the government knew that

any of the 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

State, although not soliciting false evidence,

allows it to go uncorrected when it appears.”

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

(5thCir. 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 testimony in question was actually false; (2) the

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

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

As a threshold matter, Webster hasfailed to

identify even a single specific statement made

by either witnessthat isfalse; instead, he offers

only conclusional statements about the ultimate falsity of Beckley’s and Holloway’s

testimony. Moreover, even if Webster’s

allegations of perjuryare accurate, his underlying due process claimis 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 even alleged the government knowledge of falsity on

which a due process claim is based, he has not

made a substantialshowing of the denial of his

constitutional right to due process. We deny

a COA on this issue. 

H.

Webster seeks a COA on his claim that his

(alleged) mentalretardation 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 on that conclusion is not necessary, however. Because Webster did not raise

this claim on direct appeal and has 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

collateralreview. See, e.g., Shaid, 937 F.2d at

28 The district court also questioned whether

Webster had presented any evidencedemonstrating

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

observed that bothBeckley’s alleged statement and

Holloway’sletter could plausibly be read asindications 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 allegations failed to

establish prima facie case of Napue violation

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

see also O’Keefe, 128 F.3d at 893; Blackburn,

9 F.3d at 357.
14

232. We deny a COA on this issue.

I.

Websterseeks a COA regarding the district

court’s denial of his request for discovery.30

He claims that the court abused its discretion

in denying discovery, thereby violating his due

process rights.

A habeas petitioner may “invoke the process of discovery available 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 otherwise.” Rector v. Johnson,

120 F.3d 551, 562 (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 .

. . .” Ward v. Whitley, 21 F.3d 1355, 1367

(5th Cir. 1994). Conclusional allegations are

insufficient to warrant discovery;the petitioner

must set forth specific allegations of fact. Id.

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

Cir. 1984)). 

Webster’s application does not allege a single factual dispute, which, if resolved in hisfavor, would entitle him to relief.31

 Instead, he

merely claims error in the denial of discovery

and lists the thirteen grounds for relief on

which he seeks to engage in discovery. His

application thus reflects a desire to use the habeas corpus discovery mechanism to explore

his case “in search of its existence.” Id. (quoting Aubet v. Maine, 431 F.2d 688, 689 (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 identify, with

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

The application to extend the COA issued

by the district court isin allrespects DENIED.

30 During the pendency of his initial § 2255 motion, Webster 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 disputeSSwhether her

attorney represented another person involved in the

charged crime, and therefore had a conflict of

interestSSwhich, 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”).