Revised August 19, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-50875

_______________

MARTIN SAUCEDA VEGA,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON, Director,

Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________

July 30, 1998

Before SMITH, WIENER, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Martin Vega, who confessed to a murder-for-hire, seeks habeas

corpus relief from a sentence of death. The federal district court

denied relief. Because most of Vega’s claims are entirely meritless

and the others are barred by Teague v. Lane , 489 U.S. 288 (1989),

we affirm.2 I.

In July 1985, after receiving a report of a homicide, Sheriff

Mike Bading discovered the body of James Mims lying alongside a

road. Bading and other officers arriving at the same time

recovered several items belonging to Mims, including a comb, a

screwdriver-type key chain, a pocket knife, and some change. They

also found three spent .22 caliber cartridges.

Mims’s skull had been hit with a blunt object, possibly a

handgun, and he had been shot eight times; his shirt was saturated

with blood, and the rest of his clothes wer e wet from a source

other than blood. One of the bullets had passed through his lung,

aorta, and heart, probably causing his death. Two .22 caliber

bullets were removed from his body and analyzed.

Vega confessed to the murder in January 1988. He stated that

Linda Mims had encouraged him to murder her husband, promising to

marry him afterward and to give him $30,000 of the $1 50,000 life

insurance proceeds. Vega did in fact marry her and enjoyed

substantial sums of money obtained from insurance proceeds.

In one of his statements, Vega revealed the location of the

alleged murder weapon, a .22 caliber handgun. This weapon, along

with the cartridges allegedly fired by the handgun but not found at

the murder scene, were at the specified location and presented at

trial. Vega also explained that the victim was wet because of a

failed attempt to drown him. Vega insisted that Linda Mims be

arrested immediately upon his confession.3

Vega made one statement in his handwriting and signed it in

the presence of two officers; subsequently he made other statements

containing details of the events relating to the murder. He

received Miranda warnings before confessing.

II.

A.

Vega was indicted for capital murder in February 1988, charged

with shooting Mims for the promise of remuneration. William

Rugeley was appointed to represent Vega. The trial court found

that Vega's confession and related statements were made voluntarily

and were legally admissible at trial.

Vega apparently disagreed with Rugeley about his defense, so

in August 1988 he filed a pro se motion to dismiss Rugeley because

they did “not agree with ea ch other and [could] not see eye to

eye”; Vega claimed he had funds to hire his own attorney who would

better serve his interests. At a hearing held in October, the

court informed Vega t hat Rugeley would continue to represent him

until he retained counsel of his own, at which time Rugeley would

be removed. At no time thereafter did Vega indicate that he had

employed counsel.

In January 1989, eleven days before trial, Rugeley filed a

motion to withdraw, stating that Vega h ad refused to communicate

with him. The court allowed Vega to state his position, which at4

that time was that Rugeley had told him to plead guilty even though

he was innocent. Rugeley stated that Vega would not cooperate with

him, which would cause him to be unprepared for trial. The court

refused to remove Rugeley at that late date.

B.

The jury found Vega guilty. He testified only at the

punishment phase, at whi ch the state introduced evidence of

previous ext raneous offenses as aggravating factors. These

offenses included the alleged for cible detention and rape at

gunpoint of one Shirley Barnard in 1984. Although in that case

Vega was indicted on a sexual assault charge, the charge was

subsequently dropped when the government was unable to locate the

victim to testify. Instead, the government proceeded to trial on

a felon-in-possession charge based on Vega’s supposed use of a gun

in the alleged rape. Vega was acquitted of this charge and of the

lesser included offense of unlawful possession of a handgun.

During the punishment phase of the 1989 capital murder trial,

the state called Barnard to testify to the alleged rape,

emphasizing Vega's future dangerousness. The jury apparently found

this in formation significant, because it asked to re-examine the

evidence of the firearm trial and Barnard’s testimony. Vega was

convicted and appealed to the Texas Court of Criminal Appeals,

submitting pro se briefs and motions in addition to those filed by5

Rugeley.

III.

Vega argues that the state violated his due process rights by

allowing the prosecution to employ, at the appellate stage of the

litigation only, Charles Kimbrough, an attorney who had represented

Vega during his felon-in-possession trial. Although Kimbrough

apparently played no role until after that conviction was obtained,

and was limited to the trial record in his briefs and arguments,

Vega asks us to find that Kimbrough’s involvement made the murder

trial fundamentally unfair and that he is entitled to habeas

relief. Because such a holding would be an extension of prior law

about which reasonable minds could disagree, Teague bars the relief

Vega requests.

In Teague , the Court held that federal courts may not create

n ew constitutional rules of criminal procedure on habeas review.

A new rule is one which was not “dictated by precedent existing at

the time the petitioner’s conviction became final.” 489 U.S.

at 301. A new rule is created if the rule is, “in light of this

Court’s precedent, 'susceptible to debate among reasonable minds.'”

O’Dell v. Netherland , 117 S. Ct. 1969, 1974 (1997) (citing Butler

v. McKellar

, 494 U.S. 407, 415 (1990)). Accordingly, we must

examine existing precedent and decide whether, under that

precedent, relief is required. If reasonable minds could differ on1 See Hernandez v. Johnson

, 108 F.3d 554, 559 (5th Cir.), cert. denied

, 1 18 S.

Ct. 447 (1997) (noting that this circuit “has limited Cuyler to actual conflicts

resulting from a lawyer’s representation of multiple criminal defendants,” and

assuming arguendo that Cuyler could apply where a criminal defendant’s lawyer had

previously served as district atto rney when cases were pending against the defendant

in that district).

6 whether current law requires relief, we may not grant relief

without creating a “new rule” barred by Teague

.

No court of which we are aware has considered the fact

scenario presented here. In general, our jurisprudence has

considered two relevant types of conflict-of-interest claims:

“multiple representation” and “switching sides.” Multiple

representation occurs when an attorney represents multiple parties

with conflicting interests, possibly influe ncing him to reject a

strategy that would produce optimal results for one client, in

order to improve results for another. S ee, e.g., Cuyler v.

Sulliv an , 446 U.S. 335 (1980). Switching sides occurs when an

attorney starts out repre senting one party, then represents an

adverse party in the same or related li tigation. The extent to

which jurisprudence developed in the multiple representation

context may be applied to the switching sides context is currently

unresolved. 1

This is a case of switching sides, but not of doing so in the

course of a single litigation matter. In such a case, the ethical

duty of loyalty prevents Kimbrough from acting against Vega's

interests. That duty lasted only as long as the litigation matter,

however, and then ceased to restrict Kimbrough's options. S ee,7

e.g., McNeil v. Wiscon sin , 501 U.S. 171, 175 (1991). Once the

matter ended, Kimbrough's only duty was to protect confide ntial

information he received in his capacity as attorney.

If Kimbrough had represented Vega in the possession case and

then prosecuted him at the trial level here, we would have to ask

only whether the matters were substantially related. If so, the

p otential for abuse of confidential information obtained through

t he prior representation would be high, and Vega’s trial likely

would be deemed fundamentally unfair if Vega had call ed this

conflict to the trial court’s attention , or the conflict was

obvious to the court. S ee Holloway v. Arkansas

, 435 U.S. 475, 490

(1978). Because neither this circuit nor the Supreme Court has

considered a situation in which a prosecutor formerly represented

the defendant, however, even this might require a new rule.

Still more divorced from existing precedent is the scenario

presented here. Not only have we never held that a defendant’s

former attorney may not handle an appeal against him in a

subsequent case, but we would be unlikely to do so without applying

a harmless error standard. Unlike the multiple representation

standard addressed in Holloway

, where prejudice is both likely and

difficult to identify, the situation here presents little risk of

har m to Vega’s interests, and there is an easy way to spot abuse

should it occur.

Kimbrough was limited to the trial record on appeal and could2 See id

. (“In the normal case where a harmless-error rule is applied, the

error occurs at trial and its scope is readily identifiable . . . .”).

8 not supplement it with facts or observations taken from his prior

representation. The only way to abuse his confidential information

would be to introduce such extraneous information and hope that the

appellate court, while pretending to ignor e it as outside the

record, would be influence d. Yet Vega fails to point out any

instances in which information outside the record was introduced on

appeal. Because we could easily identify such a use of

confidential info rmation were it present, the argument against

harmless error set forth in Holloway does not apply. 2

Vega poin ts to Aetna Life Ins. Co. v. Lavoie , 475 U.S. 813,

828 (1986), for the proposition that even the appearance of

impropriety requires reversal. That case involved the reversal of

a state supreme court decision written by a justice whose opinion

would have provided precedent favorable to him in a lawsuit he had

pending at the time of writing. The Court held that the justice

had a conflict of interest and should have been disqualified; its

statement that “the 'appearance of justice' will best be served by

vacating the decision and remanding for further proceedings” in no

way suggested that a decision should be reversed on the basis of a

speculative conflict merely in order to maintain the appearance of

justice. I d

. To the contrary, the Court suggested otherwise in

Cuyler

, where it he ld that a defendant who fails to object to9

multiple representation must show more than a “mere possibility of

a conflict of interest” in order to obtain relief. S ee Cuyler

, 446

U.S. at 350.

Vega make s no effort to explain how the possession of

confidential information could have helped the prosecutor’s office,

and harmed him, at the appeals stage. Even assuming he could

demonstrate some possibility of prejudice, however, reasonable

minds c ould differ as to whether current precedent supported

relief. Under T eague

, w e are barred from creating a new rule of

law in order to grant relief on this issue.

IV.

Vega cont ends that collateral estoppel prevented the state

from introducing, at the penalty phase, evidence of his possession

of a handgun and sexual assault. He points out that the sexual

assault and felon-in-possession charges were brought together, that

the sexual assault charge was dropped, that the alleged sexual

assault was nevertheless discussed at his felon-in-possession

trial, and that he was acquitted of being a felon in possession.

Because evidence of prior acts may be introduced despite an

acquittal if the standard of proof in the second prosecution is

lower, Vega’s claim must fail.

In Ashe v. Swenson , 397 U.S. 436 (1970), the Court held that

collateral estoppel is a requirement of due p rocess under the3 See also United States v. Brackett

, 113 F.3d 1396, 1401 (5th Cir.), cert.

denied

, 118 S. Ct. 341 (1997) (evidence admissible if second proceeding does not

require proof beyond a reasonable doubt).

4 See Harris v. Johnson

, 81 F.3d 535 (5th Cir.), cert. denied

, 517 U.S. 1227

(1996); Turner v. Johnson

, 106 F.3d 1178, 1189 (5th Cir.), petition for writ of

habeas corpus denied

, 118 S. Ct. 27 (1997); Huddleston v. United States

, 485 U.S.

681 (1988); United States v. Mir , 919 F.2d 940, 943 (5th Cir. 1993).

10 double jeopardy doctrine. In D owling v. United States

, 493 U.S.

342, 349 (1990), however, the Court held that “ an acquittal in a

criminal case does not preclude the Government from relitigating an

issue when it is p resented in a subsequent action governed by a

lower standard of proof.” 3 Extraneous offenses offered at the

punishment phase of a capital trial need not be proven beyond a

reasonable doubt. 4

Even assuming, therefore, that the state would have been

collaterally estopped from prosecuting Vega for the sexual assault

charge, introducing evidence of the offense at the punishment phase

of his capital murder trial was not improper. Similarly, although

the felon-in-possession charge certainly could not have formed the

basis of a new prosecution, it could be introduced as evidence of

Vega’s future dangerousness, because the jury decided only that the

government had not proven the elements of the felon-in-possession

offense beyond a reasonable doubt, and had not considered the

evidence under any lower standard of proof.

In addition, Dowling allows the introduction of evidence in a

subsequent prosecution “if the prior acquittal did not determine an

ultimate issue in the present case.” 493 U.S. at 348. In D owling

,11

evidence of a prior robbery was appropriately introduced, because

the former alleged victim had seen the defendant and could testify

as to his identity. This information could have been relevant to

the jury, even if it did not believe that the defendant committed

the crime previously charged. Id . Moreover, we held in Brackett

that evidence of intent to possess marihuana could be offered at a

subsequent trial for conspiracy to possess with intent, despite a

prior acquittal at the actual-possession trial. In B rackett

,

although the government rei ntroduced evidence of the defendant’s

actual possession, it did so only as evidence to support his

agreement to engage in a conspiracy; because the actual possession

was not necessary to a conspiracy conviction, the prior acquittal

did no t determine an ultimate fact in the conspiracy trial. S ee

Brackett , 113 F.3d at 1400-01.

In this case, therefore, the evidence is obviously admissible.

Not only did the prior acquittal fail to determine the ultimate

fact at issue here SS whether Vega posed a threat of future

dangerousness to society SS and not only did the prior acquittal fail

to resolve any questions with respect to the sexual assault, but

the evidence was admissible also because the standard of proof at

the punishment hearing was lower than that at the original criminal

trial.

V.12

Vega claims the trial court erred by failing to appoint new

counsel when Vega called to the court's attention a conflict with

his appointed counsel. This claim is meritless, because the court

had no duty to appoint new counsel.

V ega’s stated conflict was that his attorney recommended he

plead guilty, whereas Vega wanted to continue as serting his

innocence. Had the attorney refused to allow him to enter a not

guilty plea, he would have violated his ethical duty to allow Vega

to choose the broad limits of the representation. S ee, e.g., Jones

v. Barnes , 463 U.S. 745, 753 (1982). In fact, however, the

attorney proceeded to trial on a not guilty plea, and although he

expressed concerns that Vega refused to communicate with him,

thereby reducing his efficacy, neither he nor Vega claimed any

practical conflicts. In addition, Vega and his counsel were often

seen conferring at trial, a nd Vega points to no aspects of the

representation that he asked to have done differently.

Furthermore, Vega never ask ed the court to appoint another

lawyer. He did file a motion requesting leave to retain his own

counsel, and the court stated that the request would be granted,

and his appointed counsel removed, as soon as Vega informed the

court he had retained counsel of his choosing. Eleven days before

trial, appointed counsel asked to withdraw, stating that no counsel

had been appointed and that Vega had refused to communicate with

him. It was only at this time that Vega identified the13

philosophical differences between himself and his attorney. Even

then, however, he failed to request the appointment of new counsel.

The court’s inability to read his mind certainly does not

constitute a constitutional violation.

Although he attempts to put the onus on the court to

investigate the potential conflict by citing Hollow ay , Vega

confuses “conflict” in its generic sense with the term of art

“conflict of interest.” When an attorney labors under a conflict

of interest, he is pr evented, by his own self interest or by his

interest in another’s welfare, from vig orously promoting the

welfare of his client. Vega does not allege that his counsel was

so burdened.

Rather, he alleges that his counsel gave him advice he did not

want to hear. Given that the attorney accepted Vega’s decision not

to take that advice, the existence of any “conflict” worth mention

is dubious. At most, Vega and his attorney had a “conflict” with

respect to trial strategy, a problem wit h no constitutional

significance as long as Vega's wishes were respected on ultimate

issues such as pleading guilty and testifying.

VI.

Vega claims he was denied the right to present his own defense

under Faretta v. California

, 422 U.S. 806 (1975), because the trial

court refused to investigate his allegations that conflicts existed14

between himself and Rugeley. He claims it is “well documented

before, during and after trial that Petit ioner’s desired defense

was not being pursued.” He offers no facts from the record to

support this contention, however; it appears his only expression of

discontent was a complaint that Rugeley rec ommended he plead

guilty SS a recommendation that was not followed, as the case

proceeded to trial. Vega’s claim fails, because he did not provide

sufficient notice to the court that his desired defense was not

being pursued, and because to grant relief we would have to extend

the Faretta right of self-representation beyond its current

boundary as established by the Supreme Court and by this court,

creating a new rule of law barred by Teague

.

Vega relies primarily on Moreno v. Estelle

, 717 F.2d 171 (5th

Cir. 1983), yet in that case we denied relief under facts similar

to these. Moreno told the court on the day of trial that he wanted

his retained attorney to withdraw from the case because “[s]he

isn’t helping me. I have asked her to do things for me and

everything and I can’t get her to do anything. My people pay her

and I don’t want her.” I d

. at 174. We denied relief because

Moreno made no attempt to request that he be able to proceed pro se

and did not explicitly inform the court of the defenses his

attorney had allegedly refused to investigate or present. Id . at

174-76.

Furthermore, despite Vega’s characterization to the contrary,15

Moreno did not establish that a defendant has a right to force his

attorney to present his defenses. At most, we suggested that once

the court is notified that counsel refuses to present a defendant’s

prefer red defenses, F aretta may require the court to ensure that

the defendant knows of his option to represent himself rather than

continue to accept the services of his uncooperative attorney. I d

.

at 175. Even there, our statement was too weak to establish a rule

of law about which reasonable minds would not disagree: “If the

defendant can state particular instances of disagreement . . . as

to viable defenses, the defendant’s Sixth Amendment rights as

defined in Faretta are arguably implicated.” Id

.

Moreover, neither this court nor the Supreme Court has held

that a defendant may force his attorney to present a defense with

which the attorney does not agree or acquire new court-ap pointed

counsel until he finds an attorney who agrees with him. S ee Jones

v. Barnes

, 463 U.S. at 753 (counsel need not present ever y nonfrivolous argument suggested by the defendant). In United States

v. Moore

, 706 F.2d 538 (5th Cir. 1983), a conscientious district

court allowe d Moore to replace his court-appointed counsel with

different court-appointed counsel three times before finally

f inding that he had waived his right to counsel. We rejected

Moore’s contention that he had a right to an attorney who agreed

with him and would present his case in the way Moore thought

proper: “A defendant is entitled to an attorney who will consider5 See Strickland v. Washington , 466 U.S. 668, 690-91 (1983) (noting that

strategic choices based on reasonable investigation are “virtually unchallengeable”

and that reasonable professional judgments must support limitations on

investigation).

16 the defendant’s views and seek to accommodate all reasonable

requests with respect to trial preparation and trial tactics

. . . . [He] has no right to an attorney who will docilely do

as he is told.” Id . at 540.

Vega’s citation to Henderson v. Sargent , 926 F.2d 706, 711

(8th Cir. 1991), for the proposition that the choice not to present

a defense is not part of trial strategy is inapposite: In that

case, the defendant’s attorney failed to investigate a promising

defense that the defendant did not allege he had suggested but

which would have been discovered wit h proper trial preparation.

While choosing among possible defenses is unquestiona bly part of

trial strategy and therefore is subject to considerable deference,

the failu re properly to investigate possible defenses is part of

adequate preparation and receives stricter examination. 5 Even if

we were to find that Vega did present sufficient evidence to the

trial court that his attorney refused to present his defenses,

therefore, Teague would bar relief, because a constitutional right

to relief under those circumstances has not been established.

VII.

Vega also argues that the state court erred by refusing his

request t o represent himself on appeal. A defendant does have a6 See Saffle v. Parks

, 494 U.S. 484, 488 (1990) (the question is “whether a

state court considering [the defendant’s] claim at the time his conviction became

final would have felt compelled by existing precedent to conclude that the rule [he]

seeks was required by the Constitution”).

17 right to submit briefs pro se on appeal. S ee Myers v. Collins

,

8 F.3d 249, 252 (5th Cir. 1993). Because M yers was not decided

until after Vega’s appeal became final, however, it was not

available to the state court when ruling on Vega’s request. PreMyers c aselaw did not mandate the result in that case, so M yers

created a new rule of constitutional law, and we will not grant

habeas relief because the state court failed to predict its

creation. 6

Vega claims that the right to self-representation created by

Faretta dictated that he be allowed to represent himself on appeal.

More significantly, the Texas courts have repeatedly held t hat a

criminal defendant has a right to submit pro se briefs on appeal,

although he has no right to present oral argument. S ee, e.g., Webb

v. State

, 533 S.W.2d 780 (Tex. Crim. 1976). Texas courts have also

held, however, that the right to self-representation on appeal is

protected where the defendant is permitted to submit pro se briefs

and his motions to copy the record and receive notifications are

granted. S ee Hathorn v. State

, 848 S.W.2d 101, 123 (Tex. Crim.

1993). Vega apparently made no attempt to copy the record or

receive other infor mation, but he did submit briefs and motions,

some of which were granted, so the right to self-representation as18

developed by the Texas courts was not infringed.

Because the extent and requirements of the right of selfrepresentation on appeal have yet to be established in Texas or in

this circuit, a rule holding that the right was violated in these

circumstances would be a new rule of constitutional law barred by

Teague . Even assuming that the right to present pro se briefs on

appeal is established for Teague purposes, we have not established

a rule requiring the court to remove the defendant’ s previous

attorney from the case or spontaneously to provide him with the

trial record and other documents he might find helpful in writing

his briefs. Nor have we established what relief is appropriate

where the defendant is permitted to exercise his right only

partially. Because the answers to both these questions remain open

to debate among reasonable minds, Vega’s claim is barred by Teague

.

VIII.

Vega’s claims of ineffective assistance are easily dismissed.

He chastises his counsel for failing to move for a directed verdict

at th e close of the government’s evidence on the ground that his

confession was not properly corroborated. He also claims his

counsel erred in failing to file a motion for new trial on the

basis that the sexual assault evidence should have been barred by

collateral estoppel. Vega’s claims fail, because his counsel did

not err in either of these respects, and because his second claim19

is procedurally barred.

Vega suggests that the state failed p roperly to corroborate

his confession because it allege dly did not corroborate it with

respect to each element of the “corpus delicti” of capital murder.

Texas law appears to require that the state present evidence

tending to prove that “a crime was committed” and that in the case

of a confession to capital murder, the “corpus delicti” inc ludes

the crime making the murder capital, as well as the homicide

itself. See Gribbl e v. State , 808 S.W.2d 65, 71 (Tex. Crim. App.

1990). The court stressed, however, that the evidence need not be

sufficient to prove any element of the offense, but rather that the

evidence must render the corpus delicti more probable than it would

be without the evidence. I d

. at 72. This is a low evidentiary

standard, and counsel did not act unreasonably in concluding that

the prosecution had met it.

Testimony established that Vega and Linda Mims began a

relationship prior to the murder and were married shortly

t hereafter; that Linda Mims received substantial life insur ance

proceeds and other moneys from the victim’s estate; and that Vega

shared the benefits of this income. A reasonable jury certainly

could have found these facts sufficient to corroborate Vega’s

detailed confession.

Vega’s claim that counsel should have filed a motion for new

trial on grounds of collateral estoppel was not presented in his20

state habeas petitions. It is therefore unexhausted and

procedurally barred under Nobles v. Johnson

, 127 F.3d 409, 423 (5th

Cir. 1997), cert. denied

, 118 S. Ct. 1845 (1998), and Emery v.

Johnson

, 139 F.3d 191, 196 (5th Cir. 1997). In addition, given the

Court of C riminal Appeals's finding that the estoppel issue was

without merit, Vega’s counsel could hardly have committed an

egregious error in failing to make the argument before the trial

court.

IX.

At trial, the state failed to disclose that Shirley Barnard,

who testified that Vega brutally raped her at gunpoint, had a

pending felony indictment. Vega claims the failure to disclose

this information depri ved him of a fair trial. His claim can

succeed, however, only if the prosecution knew or should have known

of this evidence, and if it was “material either to guilt or

punishment.” Brady v. Maryland , 373 U.S. 83 (1963).

To prevail on a Brady claim, the defendant must d emonstrate

that (1) the prosecution suppressed evidence; (2) the evidence was

favorable to him; and (3) the evidence was “material either to

guilt or punishment.” B rady

, 373 U.S. at 87. When prosecutors are

unaware of the inform ation, the defendant must show that the

prosecution could have obtained the information through “a routine

check of FBI and state crime databases, including a witness' state7 See, e .g., Michelson v. United States , 335 U.S. 469, 482 (1948) (noting that

“[o]nly a conviction [] may be inquired about to undermine the trustworthiness of

a witness”); Bell v. State , 620 S.W.2d 116, 125 (Tex. Crim. App. 1980).

21 'r ap sheet.'” E ast v. Scott

, 55 F.3d 996, 1003 (5th Cir. 1995).

Vega’s argument fails, because the information was not material,

exculpatory evidence and because he did not demonstrate that the

prosecution knew, or should have known, of it.

The existence of an indictment, as opposed to a conviction, is

not generally admissible to impeach. 7 Under Texas law, the

existence of the indictment becomes admissible only if the witness,

on direct examination, misrepresents himself as having “no trouble

with the law.” S ee, e.g. Prescott v. State

, 744 S.W.2d 128, 130-31

(Tex. Crim. App. 1988). Here, the statement was made on crossexamination.

The only other exception, for witnesses whose testimony might

be affected by the indictment, does not apply, because Vega has

alleged no relationship between that prosecution an d his case.

See, e.g., Moore v. Kemp

, 809 F. 2d 702 (11th Cir. 1987) (witness

received a deal for t estifying). Accordingly, the information

would not have been admissible and could not have been material

information for the defense.

Furthermore, the district court found that Vega had submitted

insufficient evidence to suppor t his claim that the prosecution

knew or should have known of the pending indictment in another

county. Specifically, the court found that Vega had not alleged22

the prose cution knew about the indictment; had not demonstrated

that the prosecution could have discovere d the indictment with a

routine state and FBI criminal history check; and had not produced

evidence suf ficient to demonstrate conclusively that the person

named in the indictment was the same Shirley Barnard who testified

at his trial. We accord a presumption of correctness to these

fi n dings and see no reason to disturb them. S ee 28 U.S.C.

§ 2254(d) (1997).

X.

Vega asserts that “because he is innocent of the unadjudicated

extraneous aggravated sexual assault and the St. Louis murder

alleged by the state during the capital punishment phase his

convict ion and death sentence need to be vacated.” At best, he

makes a claim that he is ineligible for the death penalty; the

underlying conviction would be unaffected. In addition, his claim

of actual innocence fails because he does not raise new evidence

demonstrating his innocence of these alleged offenses, and we will

not disturb the jury’s implicit f inding that he committed these

crimes.

To support his claim that he is innocent of the sexual assault

of Barnard, Vega offers the “rape report” held inadmissible at

trial but consid ered at the evidentiary hearing in August 1994.

This evidence was available for trial, but held inadmissible. He23

also refers to a report, admitted at trial, prepared by

criminologist J.R. Urbanovsky for the Tex as Department of Public

Safety. Finally, he refers to alleged conflicts between Barnard’s

t estimony at his sentencing hearing and the testimony of Lind sey

Thomas at the felon-in-possession trial.

This information was available to Vega at trial. To the

extent that any of this information could have affected the jury’s

conclusion regard ing the alleged sexual assault, it was either

available or excluded as a matter of law. Accordingly, we have no

basis for setting aside the verdict.

Vega also alleges that he is innocent of the St. Louis murder

to which he had confessed. As in the case of the sexual assault,

any evidence on this subject was presumably available at trial; we

cannot be certain of this, because Vega fails to specify what

evidence he relies upon to prove his asserti on. With neither a

legal nor a factual basis for con sidering this contention, we

reject it.

Vega cites several cases to support his final claim, none of

which offers him support. In J ohnson v. Mississippi

, 486 U.S. 578

(1988), the Court ordered habeas relief where, after the jury had

imposed a death sentence, an assault conviction considered by the

jury was vacated. This new evidence, the Court held, created doubt

about the validity of the sentence. I d

. at 585. Here, in

contrast, no new e vidence suggests Vega's innocence of the8 See, e.g., Duff-Smith v. Collins , 973 F.2d 1175, 1184 (5th Cir. 1992);

Williams v. Lynaugh , 814 F.2d 205, 207-08 (5th Cir. 1987).

24 extraneous offenses.

Vega relies on two other inapposite cases: Townsend v. Burke

,

334 U.S. 736 (1948), which involved a guilty plea obtained through

misrepresentation by the prosecution and/or misreading of

information by the court, and Hance v. Zant , 696 F.2d 940, 950-53

(11th Cir. 1983), which invol ved prosecutorial misconduct in the

nature of inflammatory presentation of the evidence. Neither of

these cases is remotely relevant.

Meanwhile, Vega ignores Lucas v. Johnson

, 132 F.3d 1069, 1074

( 5th Cir. 1998), cert. dismissed

, 1998 U.S. LEXIS 4460 (U.S.

July 17, 1998) (No. 97-9463), in which we stated the “-

extraordinarily high threshold” for newly discovered evidence

demonstrating actual innocence, which includes the requirement that

the evidence be newly discovered and unknown to the defendant at

the time of the trial and the requireme nt that the evidence be

“material, not merely cumulative or impeaching.” Vega also alleges

baldly that the use of his St. Louis murder confession was

“unfair,” ignoring this court’s repeated holding that such

unadjudicated extraneous offenses may be admitted. 8

Vega has failed to offer su fficient factual and legal

justification for any of his claims. We therefore AFFIRM the

denial of habeas corpus relief.