### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 06-70008

DAVID LEE POWELL Petitioner - Appellant v. NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION Respondent - Appellee

Appeal from the United States United States District Court

for the Western District of Texas, Austin

Before JOLLY, DAVIS, and OWEN, Circuit Judges. E. GRADY JOLLY, Circuit Judge: Following his third punishment trial in 1999, David Lee Powell was convicted and sentenced to death for the 1978 capital murder of Austin Police Officer Ralph Ablanedo. We granted a certificate of appealability (COA) authorizing Powell to appeal the district court’s denial of federal habeas relief. Powell v. Quarterman, 2001 WL 1747001 (5th Cir. Apr. 16, 2008) (unpublished). We now AFFIRM the judgment of the district court. I. We set out the facts and procedural history in our unpublished order granting a COA. We repeat them here for purposes of convenience. Powell was valedictorian and “most likely to succeed” in his high school class. After United States Court of Appeals

Fifth Circuit 

### F I L E D July 16, 2008 Charles R. Fulbruge III ClerkNo. 06-70008

2 graduating from high school a year early, he was accepted into the Plan II Honors Program at the University ofTexas. While there, he became an anti-war protester and began using drugs. He never finished college. By 1978, when he

was 28yearsold, he had become a heavy user ofmethamphetamineand wasalso selling it. He was wanted by the police for misdemeanor theft and for passing

over 100 bad checks to merchants in the Austin area. He had become so paranoid that he had begun carrying around loaded weapons, including a .45 caliber pistol, an AK-47, and a hand grenade. On May 17, 1978, Powell asked his former girlfriend, Sheila Meinert, to drive him from Austin to Killeen, Texas. They went in Powell’s car, a red Mustang. Powell had the .45, the AK-47, and the hand grenade with him, as well as a backpack containing about 2 1/4 ounces of methamphetamine. Officer Ablanedowason duty in his marked patrol car when hespotted the Mustang and noticed that it did not have a rear license tag. He pulled the vehicle over. Meinert got out of the car and approached Ablanedo. She told him that she had lost her driver’s license, but showed him her passport. Ablanedo also checked Powell’s driver’s license and asked the dispatcher to run a warrant check on Meinert and Powell. The dispatcher informed Ablanedo that the computers were not functioning properly, but that there were no local warrants for Meinert. Ablanedo gave Meinert a ticket for failing to display a driver’s license and allowed her and Powell to leave. Moments later, the dispatcher told Ablanedo that Powell had a “possiblewanted” for misdemeanor theft. Ablanedo signaled for Meinert to pull over again. Meinert testified that she got out of the

car and as she was approaching the officer, she heard a very loud noise and ran back tothe car. As Ablanedo approached the Mustang, Powell shot him with the AK-47, in semi-automatic mode, through the car’s back window, knocking Ablanedo to the ground. As Ablanedo tried to get up, Powell fired at him again, after switching the AK-47 to automatic mode.No. 06-70008

1 Dr. John Blewett, an emergency room physician, and Austin Police Officer Roger Napier, testified that they, too, heard Ablanedo say “that damn girl” when he was in the emergency room prior to his death. 3 Bobby Bullard, whohappened tobedriving by on hisway homefrom work, witnessed the shooting ofAblanedo. He testified at trial that he saw shots fired from the Mustang that knocked out the back windshield. He saw a man sitting in the middle of the front seat, lying on top of the console, sort of into the back seat. He said that the man who fired the shots had long hair and was wearing a white t-shirt, and at trial he identified Powell as the man he saw that night. Edward Segura, who lived in the area, heard what he thought sounded like machine gun fire. When he went outside, he saw a red Mustang driving away. Segura testified that Ablanedosaid that he had been shot. When Segura asked, “who was it,” Ablanedo replied, “a girl.” When the dispatcher learned that therewasa possiblewarrant for Powell,

as a matter of routine, she sent Officer Bruce Mills to assist Ablanedo. When Mills arrived at the scene a few minutes later, he found Officer Ablanedo lying

on the ground. Although Ablanedo wore a bullet-proof vest, it was not designed towithstand automaticweapon fire. Ablanedo suffered ten gunshot wounds and died on the operating table at the hospital, about an hour after he was shot. Bullard, hiswifeVelma, whocame outside after seeing the lights from the police car, Segura, and Officer Millsall attempted toaid Ablanedowhilewaiting for the ambulance toarrive. All of them testified that Ablanedo said, repeatedly, “that damn girl” or “that Goddamn girl.”1 Mills testified that Ablanedo told him that a girl and a guy were in the car, and that they were armed with a shotgun

or machine gun. Mills said that Ablanedo told him, twice, that “He got me with the shotgun.” Apparently one ofthe shots fired by Powell flattened one ofthe Mustang’s

rear tires. Meinert drove the car into the parking lot of a nearby apartmentNo. 06-70008

4 complex. Officer Villegas, who was en route to the scene and who had heard a description ofthe Mustang in the dispatcher’s broadcast, spotted the vehicle in the apartment complex parking lot and pulled in. He immediately came under automatic weapon fire. He testified that a male with medium length hair and

no shirt was firing at him. More police officers arrived, and a shoot-out ensued. Miraculously, no one was shot. Sheila Meinert testified that Powell handed her a hand grenade in the apartment complex parking lot and told her to remove the tape from it. She said that she started peeling tape off the grenade, but was hysterical and shoved it back at him and she did not know what he did with it. Officer Bruce Boardman testified that the shooting in the apartment complex parking lot came from a person at the passenger side of the Mustang. He said that he sawthat person appear again, making “a throwing motion” over the top of the Mustang, and simultaneously, a female at the driver’s side of the Mustang ran away from the car, screaming hysterically and flailing her arms. The person at the passenger’sside (Powell), after making the “throwing motion,” began running away from the scene toward the grounds ofa high school across the street. Later, of ficers found a live hand grenade about ten feet away from the driver’s door of Officer Villegas’s car that was parked in the same parking lot. The pin for the grenade was discovered outside the passenger side of the Mustang where the person making the throwing motion had been. The grenade, which had a kill radiusof16feet and a casualty radius of49feet, did not explode because thesafety clip had not been removed. The State presented evidence that it was likely that only someone who had been in the Army (Powell had not) would have been familiar with the concept of a safety clip (also known as a jungle clip), which was added to the design during the Vietnam War to keep grenades from exploding accidentally if the pin got caught on a branch.No. 06-70008

5 Meinert wasarrested in theapartment complex parking lot. She was later convicted as a party to the attempted capital murder ofOfficer Villegas. Powell

was arrested a few hours later, around 4:00 a.m. on May 18, after he was found hiding behind some shrubbery on the grounds of the high school. Powell’s .45 caliber pistol was found on the ground near where he was hiding, and his backpack containing methamphetamine with a street value of approximately $5,000 was found hanging in a tree. Lawenforcement officers searched the Mustang and recovered handcuffs,

a book entitled “The Book ofRifles”, handwritten notesabout weapons, cartridge casings, the AK-47, a shoulder holster, and a gun case. Following a search of Powell’s residence, officers seized another hand grenade, methamphetamine, ammunition, chemicals and laboratory equipment for the manufacture of methamphetamine, and military manuals. In September 1978, Powell was convicted and sentenced to death for the capital murder of Officer Ablanedo. His conviction and sentence were affirmed on direct appeal. Powell v. State , 742 S.W.2d 353 (Tex. Crim. App. 1987). The Supreme Court vacated and remanded for reconsideration in the light of Satterwhitev. Texas, 486 U.S. 249 (1988). Powell v. Texas, 487 U.S. 1230 (1988). On remand, the Texas Court ofCriminal Appeals reaffirmed Powell’s conviction and sentence. Pow

ell v. State

, 767 S.W.2d 799 (Tex. Crim. App. 1989). The Supreme Court vacated Powell’s sentence. Powell v. Texas, 492 U.S. 680 (1989). Powell was convicted and sentenced to death again following his second trial in November 1991. Although the Supreme Court had vacated only the sentence, Texas lawat that time required a retrial ofthe entire case even if the reversal was only for sentencing error. On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction, but vacated the sentence and remanded for a newsentencing trial, because the trial court had not instructed the jury to answer the special issue on deliberateness. Powell v. State , 897No. 06-70008

6 S.W.2d 307 (Tex. Crim. App. 1994). By that time, Texas law had changed and

no longer required a retrial of the entire case when reversal was only for sentencing error. Powell filed a petition for a writ ofcertiorari, claiming that hewas entitled to a complete new trial, and notjust a newtrial on punishment. The trial court stayed the proceedings until the Supreme Court denied certiorari. Powell v. Texas, 516 U.S. 808 (1995). Powell then filed a motion in the trial court toset aside his conviction and for a complete new trial on guilt or innocence as well as punishment. The trial court denied that motion on May 21, 1996. Before Powell’s third trial began, the defense tried to establish that Meinert was involved in the shooting ofAblanedoand in the exchange ofgunfire wi th officers in the apartment complex parking lot. In pursuit of that theory, they retained a metallurgist toconduct chemical analysisofthe bullet fragments recovered from Ablanedo’s body after exhumation and a second autopsy in 1998. They also subpoenaed Meinert’s parole records. The testing by the defense expert was incomplete at the time the third trial commenced in February 1999. After they were denied a continuance, defense counsel made a strategic decision not to present any evidence of their “two-shooter” theory. Instead, Powell’s counsel told the jury in his opening statement that Powell was responsible for every aspect of the crime, that Meinert had no part in it, and that, therefore, he would not ask the State’s witnesses “a single question” about the c ircumstances of the crime because “there’s not going to be a question about how it was done.” The defense theory

was that Powell was no longer a future danger. In order to preclude the prosecution from introducing victim impact evidence, Powell waived his right to a special issue on mitigating evidence.No. 06-70008

7 Meinert’s parole records were delivered to the trial judge on March 1, the sixth day of the State’s case and the day before Meinert testified. The trial court, after in camera examination, released the records to defense counsel. Meinert’s parole file included the following documents: (1) A seven-page document on TDCJ letterhead containing an “official version” of the offense. (2) A document entitled “Statement of Fact Form,” executed by Assistant DistrictAttorney Rosemary Lehmberg. It and the “official version” of the offense stated that Officer Ablanedowasshot several times, fell to the ground, and tried to get up, “but as he did, they shot him again, killing him,” and that as soon as Officer Villegas approached the red Mustang in the apartment complex parking lot, “they began firing at him and other officers at the scene.” (Emphasis added.) (3) A July 21, 1988 letter written by Austin Police Association president Dell Shaw, accusing Meinert of throwing a hand grenade at Officer Villegas, along with 25 pages of signatures of police officers and others. (4) A May 27, 1987 letter authored by then Assistant District Attorney Terry Keel, requesting that the Board deny parole to Meinert, with an attached letter authored by Arlene Ablanedo-McNeill, the victim’s sister, accusing Meinert of throwing a hand grenade at Officer Villegas, accompanied by ten pages of signatures of police officers and law enforcement personnel. (5) A September 22, 1988 letter written by A rlene Ablanedo-McNeill, protesting Meinert’s parole and stating that Meinert threw a hand grenade at Officer Villegas, accompanied by 17 pages of signatures of police officers and others. The persons, among the myriad others, who signed the letters to the parole board accusing Meinert ofthrowing the hand grenade include: (1) Officer Bruce Boardman, who was the only witness who testified at Powell’s trial that Powell threw the grenade; (2) Terry Keel, the lead prosecutor at Powell’s second trial;No. 06-70008

2 In a formal bill ofexception filed in the trial court in March 1999, Powell stated that the court instructed counsel not to use Meinert’s parole records to cross-examine her. The record does not support that statement. In denying the defense request for an adjournment, the trial court stated that the parole file documents were inadmissible hearsay. Just before Meinert testified, defense counsel told the court that the defense was not going to use the documents from Meinert’s parole file, because the defense received the material too late to develop the two-shooter theory. 8 (3) Robert Smith, the lead prosecutor at Powell’s third trial; (4) Officers Justin Shaffer and LupeTre

vino, whotestified about Powell’sarrest; (5) Officer Napier, who testified about Meinert’s statement to the police; (6) Bruce Mills, who testified about Ablanedo’s dying declaration; and (7) six officers who testified about various aspects of the investigation. Powell moved for a continuance in order to attempt to interview the persons who signed the letters, but the trial judge denied it. Although counsel

wasfurnished parole recordsa day before Meinert testified, he made no attempt to use the parole records in cross-examination or in an attempt to establish that Meinert threw the grenade or that she otherwise played a role in the shooting or the grenade episode. 2 As proof of future dangerousness, the State relied primarily on the facts ofthe murder and theshoot-out at the apartment complex parking lot, including the throw

ing of the hand grenade. In addition, the State presented evidence that in 1970, Powell stole a car and used false identification, and that, in early 1978, he followed a maintenance worker home with a knife after the worker prevented him from breaking into a storage building where his landlord had stored his property after he failed to pay his rent. The State also presented evidence of incidents occurring during Powell’s incarceration following Ablanedo’s murder. In October 1978 he was displeased with the television program being shown in the prison and spat on a corrections officer. In February 1979, he spat at an employee at Rusk State Hospital after the employee told him he would have to get up at 6:00 a.m. to use a razor. In AprilNo. 06-70008

9 1979, he beat on a door with a chair because he was angry after security would not let him have some food that a visitor had brought to him, and he told a security technician at Rusk State Hospital that he could make $2000 by arranging an escape. In May 1979, he kicked a guard in the courtroom when the guard restrained him while he was trying to hug or kiss his girlfriend. In 1988, he received a disciplinary report for having an extra pair ofsocks and shorts. In 1989, he received a disciplinary report for playing his radio too loud. In 1990, he received a disciplinary report for not making his bed before 6:00a.m. Also in 1990, he kicked and banged on a door when he was not allowed to use the telephone tocall hisattorney. During jury selection for his 1991 trial, he became angry and cursed a guard when he was not allowed to have contact lens wetting solution for his sore eyes. In 1992, he put his foot in front of the door to the day

room when a corrections officer was trying toclose the door. Finally, in 1996, he received a disciplinary report for refusing to obey an order to remove a poster from the wall of his cell. Powell’s counsel presented evidence that Powell had been a smart, wellmannered, courteous, law-abiding young man with great promise. He grew up

on a dairy farm and attended a rural school. He was exceptionally bright. He

wasvaledictorian ofhisvery small high school class, and graduated a year early. He entered the honors program at the University ofTexas. But his life soon took

a decided turn downhill. He began using drugs, which led to his debilitating addiction, drug dealing, thefts, and increasingly irrational behavior. The defense also presented evidence that once he settled down in prison his attitude took a turn much for the better. Powell became a model prisoner and had developed positive relationships with many Texas citizens. His family and friends testified that, once his involvement with drugs ended after he went to prison, Powell was very much like the young man they had know n before he became involved with drugs

-- pleasant, sociable, friendly, and helpful toothers.No. 06-70008

10 Several prison guards testified for the defense that Powell was quiet, wellmannered, and not a troublemaker in prison. There was evidence that he had helped other inmates learn to read, and that hewas involved with other citizens in various forms of volunteer work. He was also admitted to the work-capable program, and had a job in the prison garment factory, where he had access to

scissors and other sharp instruments. The assistant plant manager testified that Powell was a good worker in the garment factory. Thus, nearly all of the evidence of future dangerousness related to the events before Powell went to prison. Furthermore, in closing argument, prosecutor Darla Davis referred to Dr. Wallace’s testimony when arguing that Powell was not under the influence ofdrugs at the time ofthe murder and shootout. In his final closing argument, prosecutor Robert Smith argued, among other points, that Powell’sfuturedangerousnesswasevident from thefact that hewas in full control, and not crazed on drugs, when he shot Ablanedo and threw the hand grenade:

You want to pretend to me that David Lee Powell knew there was tape on that grenade when he threw it? He’s hunkered down in the Mustang in a fire fight for his life. He gave it to Sheila and told her what to do. You see the photograph, it’s ten feet from Villegas’ patrol car. You think he wasn’t trying to kill people? The jury answered the special issues on deliberateness and future dangerousness affirmatively and the trial court sentenced Powell to death. Powell filed a motion for newtrial in which heargued, among other things, that his due process rights were violated by the untimely disclosure of the exculpatory evidence in Meinert’s parole file. In response, the state presented affidavits from Lehmberg, Shaw, and others who signed the protest letters, in which they stated that they had no personal knowledge regarding whether Meinert fired any shots at either scene or threw the hand grenade. The trial court denied Powell’s motion for a new trial.No. 06-70008

11 TheCourt ofCriminal Appealsaffirmed Powell’ssentence. Powe ll v. State

, No. 71,399 (Tex. Cri m. App. 2002) (unpublished). The Supreme Court denied certiorari. Powell v. Texas, 537 U.S. 1015 (2002). Powell filed an application for state habeas reliefin September 2001. The Texas Court of Criminal Appeals denied relief in September 2002. E x parte Powell , No. 7,407-02 (Tex. Crim. App. Sept. 25, 2002) (unpublished order). Powell filed a petition for federal habeas relief on October 30, 2003. The district court adopted the magistrate judge’s report and recommendation and denied relief on December 27, 2005. The district court also denied a COA. II. A. Based on our limited, threshold inquiry and general assessment of the merits of Powell’s claims, we granted a COA authorizing him to appeal the denial of habeas relief for the following three claims: Claim 1

. Apprendi v. New Jersey, 530 U .S. 466 (2000), and R ing v. Arizona, 536 U.S. 564 (2002), which were decided while Powell’s case was on direct appeal, required that Powell’s third trial (a capital resentencing proceeding following affirmance ofthe conviction) be a complete newtrial on all the elements of the capital offense (including guilt-innocence elements) rather than just a retrial on the elements formerly treated as sentencing factors. Claim 2

. The prosecution’s failure timely to disclose documents in which agents ofthe prosecution asserted that Meinert fired shots at Officer Ablanedo and the other officers and threw a hand grenade violated Powell’s right to due process under Brady v. Maryland, 387 U.S. 83 (1963). Claim 3

. Powell’s Fifth and Fourteenth Amendment rights under E stelle

v. Smith, 451 U.S. 454 (1981), were violated when an emergency room doctor,No. 06-70008

3 Miranda v. Arizona, 384 U.S. 436 (1966). 12 who did not provide Miranda 3 warnings to Powell when he examined Powell following his arrest, testified for the prosecution about Powell’s answers to questions the doctor asked during the examination. We gave the parties an opportunity to file supplemental briefs on the merits, and heard oral argument. We now turn to consider whether Powell is entitled to federal habeas relief on his claims. B. Powell filed his federal habeas petition after the effective date oftheAntiTerrorism and Effective Death Penalty Act (AEDPA). Under AEDPA, with respect to claims adjudicated on the merits in state court, Powell is not entitled to federal habeas relief unless the state court’s adjudication of his claims

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by theSupreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). A decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by th[e Supreme] Court on a question of law or if the state court decides a case differently than th[eSupreme] Court hason a set of materially indistinguishable facts.” Williams v. Tayl or, 529 U.S. 362, 412-13 (2000). An “unreasonable application” ofclearly established federal lawoccurs “ifthestate court identifies the correct governing legal principl e from th[e Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” I d

. at 413. The state court’s factual determinations “shall be presumed to be correct,”No. 06-70008

13 and the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). III. A. Powell’s first claim is that Apprendi v. NewJersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), which were decided while hiscasewas
on direct appeal, required that his third trial (a capital resentencing proceeding following affirmance ofhisconviction for capital murder) bea complete newtrial

on all ofthe elements ofthe capital offense (including guilt-innocence elements) rather than just a retrial on the punishment elements. Powell’s argument is complicated and confusing. As we understand it, he asserts: (1) deliberateness is an element of the Texas offense of “death-eligible” capital murder; (2) a special issue on deliberateness was not submitted to the jury at his second trial; and (3) therefore, his resulting conviction at thesecond trial wasfor the lesserincluded offense of “non-death-eligible” capital murder. He therefore contends that Apprendi and Ring dictate that the Texas Court ofCriminal Appealsshould havevacated both hisconviction and hisdeath sentence and remanded for a new trial on all of the elements of “death-eligible” capital murder, including both the guilt-innocence elements and the punishment elements. In his brief, he asserted that to conclude otherwise would violate the Double Jeopardy Clause because it would sanction the trial ofa greater offense (death-eligible capital murder) following the conviction and affirmanc e of its lesser-included offense (non-death-eligible capital murder). In support for that argument, he relied on Brown v. Ohio, 432 U.S. 161, 169 (1977), in which the Supreme Court held that “the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.”No. 06-70008

14 At oral argument, however, Powell’s counsel clarified that Powell is not making a claim that his constitutional rights under the DoubleJeopardy Clause have been violated. Instead, the only remedy he seeks is a complete new trial

on both the guilt-innocence and punishment elements. Powell’s argument, reduced to its essence, is simply that bifurcated capital murder trials are not permitted unless the samejury that finds the defendant guilty also decides the special issues related to punishment. Apprendi and Ring do not require such a rule. At issue in Apprendi was a NewJersey hate crime statute that provided for an increase in the maximum prison sentence for a crime based on the trial judge’s finding, by a preponderance of the evidence, that the defendant, in committing the crime, had acted with a purpose to intimidate the victim based

on particular characteristics of the victim. 530 U.S. at 468-69. The Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. In Ring, the Court considered an Arizona statute which provided that, “following a jury adjudication of a defendant’s guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence ofthe aggravating factors required by Arizona law for imposition of the death penalty.” 536 U.S.

at 588. The Court held that the Sixth Amendment guarantees that capital defendants “are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” I d. at 589. The Court concluded that “[b]ecause Arizona’s enumerated aggravating factors operate as the functional equivalent ofan element ofa greater offense, the Sixth Amendment requires that they be found by a jury.” I d

. at 609 (internal quotation marks and citation omitted).No. 06-70008

15 The Texas court’s decision to remand for a new trial only as to punishment, and not as to guilt or innocence, was neither contrary to, nor an unreasonable applic

ation of Apprendi or Ring, because all of the elements of capital murder necessary for the imposition ofthedeath penalty weresubmitted to a jury and proven beyond a reasonable doubt. As Powell concedes, neither Apprendi nor any other Supreme Court decision requires the same jury to determine guilt and punishment. Powell can cite noauthority tosupport hisargument that, in affirming his conviction for capital murder but vacating thedeath sentenceand remanding for

a new punishment trial, the Texas Court of Criminal Appeals effectively converted the underlying conviction for capital murder into a lesser-included offense. There is no support for such an argument because the reversal of the death sentence was not on any basis that bars retrial ofthe sentencing phase of the prosecution. Certainly there is no clearly established law decided by the SupremeCourt tothat effect. The state court’s decision ordering a new trial only

as to punishment issues is therefore neither contrary to, nor an unreasonable application of, clearly established federal law. We now turn to consider Powell’s Brady claim. B. (1) Powell contends that his right to due process under Brady v. Maryland

was violated by the prosecution’s failure timely to disclose the Meinert parole documents in which agents ofthe prosecution asserted that Meinert fired shots

at Officer Ablanedo and the other officers and threw a hand grenade. He contends that the measure of his culpability, and the calculus of his future danger, would have changed significantly in his favor if the jury belie ved that Meinert was involved in the shooting to the extent described in Assistant District Attorney Lehmberg’s “Statement of Fact Form” or that Meinert threwNo. 06-70008

16 the hand grenade at Officer Villegas. He contends further that, even if the jury did not believe that Meinert was involved in the shooting or the throwing ofthe grenade, he could have used the documents to discredit the prosecution, by arguing that ifthe police and prosecutorswould lie to keep Meinert from getting parole, they would also lie to keep the jury from answering “no” to the future dangerousness special issue. Under Brady, the prosecution has a duty to disclose to the defense exculpatory evidence that is material either to guilt or to punishment. Brady, 373 U.S. at 87. The duty to disclose extends to evidence that may be used for impeachment. U nited States v. Bagley, 473 U.S. 667, 676 (1985). “[T]he individual prosecutor has a duty to learn ofany favorable evidence known to the others acting on the government’s behalfin the case, including the police.” Kyles

v. Whitley, 514 U.S. 419, 437 (1995); see also Strickler v. Greene , 527 U.S. 263, 280-81 (1999). Accordingly, to establish a Brady violation, a defendant must make the following showing: “The evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler, 527 U.S. at 281-82. “[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. A determination of the materiality ofwithheld evidence must be made “collectively, not item-by-item.” Kyles, 514 U.S. at 437 . “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Id. at 434.No. 06-70008

4 Other courts have reached a similar conclusion regarding mid-trial disclosures of Brady material. See United Statesv. Tyndall , 521 F.3d 877, 882 (8th Cir. 2008) (“A mid-trial disclosure violates Brady only if it comes too late for the defense to make use of it.”); United Statesv. Warren, 454 F.3d 752, 760 (7th Cir. 2006) (“Late disclosure does not itselfconstitute a Brady violation.”); United Statesv. Knight, 342 F.3d 697, 708-09 (7th Cir. 2003) (Brady not violated where defendant made effective use of tardily-disclosed evidence); McMeans v. Brigano, 228 F.3d 674, 684 (6th Cir. 2000) (“Generally, exculpatory evidence must be produced by the prosecution “in time for effective use at trial.”); United States v. Woodley, 9 F.3d 774, 777 (9th Cir. 1993) (disclosure of Brady material “must be made when it is still ofsubstantial value to the accused”; defendant not prejudiced by untimely disclosure where evidence was used effectively at trial); United Statesv. Patrick, 965 F.2d 1390, 1400 (6th Cir. 1993) (“Delay [in disclosure] only violates Brady when the delay itself causes prejudice.”); United States v. Warhop, 732 F.2d 775, 777 (10th Cir. 1984) (due processsatisfied ifBrady material is disclosed before it is too late for the defendant to make use ofthe benefits of it); United Statesv. Higgs, 713 F.3d 39, 44 (3d Cir. 1983) (“No denial ofdue process occurs if Brady material is disclosed toappellees in time for its effective use at trial.”); United Statesv. Kubiak, 704 F.2d 1545, 1550 (11th Cir. 1983) (Brady not violated by untimely disclosure ofevidence which was utilized at trial, because the focus ofdue processviolation is “not upon the fact ofnondisclosure, but upon the impact of nondisclosure on the jury’s verdict”). 17 The Supreme Court has never expressly held that evidence that is turned

over to the defense during trial has been “suppressed” within the meaning of Brady

. Our court has held that such evidence is not considered to have been suppressed. See United States v. Williams, 132 F.3d 1055, 1060 (5th Cir. 1998); see also Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994); United States v. McKinney, 758 F.2d 1036, 1049-50 (5th Cir. 1985). In this Circuit, when the claim is untimely disclosure of Brady material, we have looked “towhether [the defendant] was prejudiced by the tardy disclosure.” Williams, 132 F.3d at 1060. We have held that a defendant is not prejudiced if the evidence is received in timefor itseffective use at trial. U nited Statesv. Walters, 351 F.3d 159, 169 (5th Cir. 2003) (collecting cases) . 4 These principles that we have applied to claims of untimely disclosure of Brady material

-- and which the Texas Court of Criminal Appeals applied in Powell’s case -- are consistent with the purpose of the Bradydisclosure requirement, which is to ensure that the defendant receives a fair trial. See Kyles, 514 U.S. at 434.No. 06-70008

18 With these legal princ iples in mind, we turn our attention to the state court’s decision. On direct appeal, the Texas Court of Criminal Appeals rejected Powell’s Brady claim for two reasons: (1) the alleged Brady evidence was not material; and (2

) the evidence was disclosed to Powell in time for him to have made effective use of it. (2) The Texas court held that, even assuming that the documents were admissible, the “official version” and “Statement of Fact Form,” which implied that Meinert participated in the shooting, were not material because those documents were prepared by persons who had no firsthand knowledge of the events. The court noted that Assistant District Attorney Rosemary Lehmberg, who signed the Statement of Fact Form, submitted an affidavit at the hearing

on Powell’s motion for a newtrial in which she stated that shewas familiar with the facts of Meinert’s and Powell’s cases; that “[t]here is no evidence ofwhich I

am aware that shows that Sheila Meinert fired a weapon”; that she was not present when the shootings took place and had “no personal knowledge ofwhat occurred”; and that the “use of the term ‘they’ in reference to ‘they shot him again’ and ‘they began firing at him’ is imprecise.” The Court of Criminal Appeals concluded that therewas not a reasonable probability that the outcome ofthe proceeding would have been different, had this evidence been disclosed to the defense. With respect tothe petitions stating that Meinert threw the hand grenade, the court stated that they would have had little, if any weight, against Officer Boardman’s testimony that he sawthe male individual on the passenger side of the Mustang make a “throwing motion.” The court observed that, with the exception of Boardman, none of the persons who signed the petitions had any personal knowledge of the events or were present at the scene. The court thus concluded that thestatementsand signatures ofprosecutors, police officers, andNo. 06-70008

19 other law enforcement personnel in the context of a parole hearing, about the facts of the offense, when they had not been personally present at the scene, would not carry much probative value. The court stated that although Powell could have impeached Officer Boardman’s testimony with Boardman’s signature on the petition attached to the letter stating that Meinert threw the grenade, there was not a reasonable probability that Powell would have been given a life sentence if the letter had been more timely disclosed. The court noted that Boardman’s trial testimony

was only that he saw the male figure make a throwing motion. The court pointed out that Powell did not dispute that the grenade’s safety pin was found right outside the passenger door ofthe Mustang, where Powell, not Meinert, had been seated and had been firing at the police. The court stated that, in the light of the trial testimony, the physical evidence, and the testimony that Powell routinely carried an assault rifle and hand grenades around with him, it could not conclude that the impeachment value of the parole protest letters was sufficiently strong to demonstrate a reasonable probability that Powell would have been given a life sentence rather than death. The court also held that the evidence was disclosed early enough to have been ofuse to Powell. The court noted that the evidence was disclosed to Powell during the State’s case in chief, before Meinert testified, and that, assuming it

was admissible, Powell could have presented the evidence during the defense case, and could have recalled Officer Boardman for impeachment purposes. The court rejected Powell’sclaim that he could not have effectively used the evidence because he had previously stated in his opening statement that Meinert was blameless. The court reasoned that defense counsel’s opening statement did not bar him from presenting contrary evidence later, but simply would have required him to make a choice about his strategy and how he would explain it to thejury. (3)No. 06-70008

20 Powell contends that all of the evidence in Meinert’s parole file was admissi ble as admissions of a party opponent. He contends further that the evidencewas material, because it called intoquestion the primary evidence that the State relied on as proof of his future dangerousness -- that Powell was the only shooter and that he threw the hand grenade. He contends that there is a reasonable probability that the outcome would have been different if he had been able to showthat he was not solely responsible for the events on the night ofthe

murder, and that the prosecution had dealt leniently with Meinert (she was convicted ofattempted capital murder ofOfficer Villegas in connection with the shoot-out, was sentenced to 15 years, and served four years before being paroled). Powell asserts that Lehmberg’s attempt to minimize the accuracy of the “Statement of Fact Form” based on lack of personal knowledge would not have been credible to thejury, because thejury would have seen the prosecution

as taking contradictory positions

-- casting the document as inaccurate at Powell’s trial when it was in their interest to place all the blame on Powell, but having presented it as an accurate version before the Parole Board, when their interest was keeping Meinert in prison. Powell argues that the suppressed evidence would have raised questions about the credibility of the entire prosecution team and its theory ofthe case, because Smith, the lead prosecutor, maintained at trial that Powell threw the grenade, even though he was among the signatories to a letter to the parole board stating that Meinert threw it. Smith also maintained that Meinert was not involved in the shooting at either scene, even though the Statement of Fact Form signed by an attorney in his office stated that both Powell and Meinert fired shots. Powell argues that, had he been able to present evidence that agents ofthe State had taken the position that Meinert participated in the shooting and threw the hand grenade, thejury might haveviewed his roleasthe impulsive behavior ofa drug-impaired, strungout, desperate person rather than a cold, calculating, unrepentant person whoNo. 06-70008

21 was willing to risk the lives of not only the police officers in the apartment complex parking lot, but alsothosewhoweresleeping in the nearby apartments. Powell maintains that there was considerable circumstantial evidence that Meinert participated in the shooting at both scenes and that she threwthe hand grenade: Before he died, Officer Ablanedo told Edward Segura that a girl shot him, and other witnesses also heard Officer Ablanedo say, over and over, “that damned girl.” Meinert testified that Powell gave her the grenade and told her to remove the tape from it, and she gave conflicting testimony as towhether she took the tape off, although she did say that she threw it back to Powell. When the grenade was found by the police, there was still some tape wrapped around the spoon, and the backup safety clip had not been removed. Powell argues that he was familiar with hand grenades and would have known that the grenade could not have exploded in that condition, and this supports an inference that Meinert, who knew nothing about grenades, must have been the one who threw it. Powell asserts that Meinert had the same motive to fire at the officers in the apartment complex parking lot and to throw the grenade, because she wasjust as likely as Powell to be shot by the police or arrested. Powell contends further that the state court unreasonably decided that the

materials were disclosed in time for him to have used them effec tively. He asserts that once defense counsel had admitted in his opening statement that Powell committed the entire crime by himself, there was no credible way that defense counsel could have taken back that statement admitting Powell’s guilt and exonerating Meinert. Powell argues that he was prejudiced by the late disclosure because it caused the defense to admit guilt, exonerate Meinert, and put all oftheir effort intoshowing that Powell was no longer a danger toanyone. He notes that, after eleven hours ofdeliberation, thejury was deadlocked 9-3 on the issue of future dangerousness.No. 06-70008

22 For all ofthese reasons, Powell argues that he was prejudiced by the late disclosure of the Meinert parole documents. (4) The State argues that the documents in Meinert’s parole file are not material to the punishment verdict because they are inadmissible hearsay. Even ifthey had been admitted, the State maintains that the prosecution would havecalled the personswhosigned thedocuments, and they would have testified that they had no personal knowledge of whether Meinert participated in the shooting or whether she threwthe hand grenade. The State points out that the only witness to the murder, Bobby Bullard, testified that he saw Powell shoot Officer Ablanedofrom inside the car, and that noone testified that Meinert fired a weapon during the shootout in the apartment complex parking lot. The State contends that any attempt to impeac h Officer Boardman (the only witness who testified that he saw the male on the passenger side of the Mustang make a throwing motion) with the protest letter that he signed would have had little impact on thejury, because other evidence led to the conclusion that Powell was the only shooter and threw the grenade: Bobby Bullard identified Powell as the person who shot Officer Ablanedo; Velma Bullard identified Powell as the person in the passenger seat of the Mustang; Officer Villegas identified Powell as the person shooting at him during the shoot-out; Officer Hearon testified that the male was on the passenger side ofthe Mustang shooting at the officerswith an assault rifle; Officer Foree testified that Meinert ran from the driver’s side when she surrendered; Officer Williams found the grenade pin on the passenger side of the car; and Meinert testified that Powell handed her the grenade and told her to remove the tape, but she was appalled and gave it back to him. The State further contends that, even if the parole file documents had persuaded the jury that Meinert threw the grenade and fired shots during theNo. 06-70008

5 At the 1999 trial, prosecutor Robert Smith stated that the contents of the parole file were disclosed to the defense more than a year before trial. Powell’s counsel who represented him at the 1999 trial submitted affidavits in which they stated that they themselves saw the contents of Meinert’s parole file for the first time during the 1999 trial. At the 1991 trial, during defense counsel’s cross-examination of Meinert, counsel asked her ifshe knewthat the judge had written a letter recommending parole. Defense counsel also referred in closing argument to thejudge’s letters to the Parole Board on behalf of Meinert. This indicates that in 1991 the defense was aware ofat least some of the contents of Meinert’s parole file, which included two letters from the judge in support of her parole. 23 shoot-out, there is no reasonable probability that this would have affected the jury’s verdict on future dangerousness because, as the district court noted: Powell does not dispute that he killed Ablanedoby shooting him numerous times with an automaticAK-47 and that he attempted to shoot numerous other police officers with the same weapon; he did not challenge the evidence that piror to the murder he routinely carried the A K-47 and a hand grenade with him wherever he went; and he did not challenge the evidence that police discovered in his residence other weapons, including another hand grenade, books on weaponry and guerilla warfare, the components ofa methamphetamine lab, and methamphetamine. The State contends that, although Powell presented evidence that he had been a model prisoner for 20years, thejury waswell aware of the fact that he had been locked up in prison under strict guard, without access to weapons and drugs. The State contends further that, in any event, the evidence in Meinert’s parole filewas disclosed to Powell in a timely manner. Because the fact that the State actively opposed Meinert’s parole was addressed by Powell’s counsel during the second trial, the State maintains that Powell either knew or should have known ofthe essential factsthat clearly would have permitted him toargue that Meinertwasan active participant in the crime. 5 The State contends further that the Texas Court of Criminal Appeals reasonably concluded that the disclosure ofthe documents at trial allowed Powell to make use ofthem without losing credibility. The State maintains that Powell could have capitalized on theNo. 06-70008

24 timing of the disclosure and explained his change of strategy by blaming the State. The State also notes that the record reflects that Powell’s counsel were prepared to change course in mid-trial iftheir expert ballistics report had come back and indicated that Meinert may have shot at Ablanedo. (5) Under AEDPA, it is not our task todecide denovowhether Powell’s rights

under Brady were violated. Instead, our review is limited to determining whether the state court’s decision that the documents in Meinert’s parole file

were not material and were disclosed in time to be of effective use to Powell is contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court. Dickson v. Quarterman, 462 F.3d 470, 477-78 (5th Cir. 2006). We conclude that it is neither. Assuming that all of the documents in Meinert’s parole file were admissible and had been used by the defense at trial, the State could have called thewitnesseswhosigned the documents and they would have testified that they had no personal knowledge of whether Meinert fired any shots or threw the grenade. The only witness to the shooting of Officer Ablanedo testified that Powell fired all of the several shots. There was no evidence that Meinert fired

a weapon at the scene of the murder or at the apartment complex parking lot. Even ifweassume that thedefensecould have impeached Officer Boardman, the only witness who testified that he saw Powell make a throwing motion, and further assume that, as a result, the jury believed that Meinert threw the grenade, other probative evidence of Powell’s future dangerousness prevents our concluding that the state court unreasonably applied Brady when it determined that the evidence was immaterial. In the light of the evidence that Powell murdered Officer Ablanedo with a fully automatic AK-47, and then used that

same weapon to fire at the other police officers in the apartment complex parking lot; that Powell purchased the hand grenade thrown in the parking lot,No. 06-70008

25 as well as the one found in his apartment; that Powell carried guns and a hand grenade around with him in his car wherever he went; and that Powell handed the grenade to Meinert and told her to remove the tape from it, the state court could reasonably conclude that this evidence rendered the impeachment evidence immaterial bec ause confidence in the outcome was not undermined. Furthermore, the circumstantial evidence that Powell threw the grenade was strong: the safety pin was found outside the passenger door of the Mustang, where Powell was seated. Powell’s trial strategy was to persuade thejury that he had become nonviolent in the years since the murder and shoot-out and thus there was not a reasonable probability that he would be violent in the future. Because he chose not to contest that his activities prior to his arrest were violent, it is unlikely that it would have made any consequential difference to the jury whether he threwthe hand grenade himself, or handed it to Meinert to throw. Although the prosecutors referred in closing arguments to Powell having thrown the hand grenade, that was not the primary factor that the State relied on to convince the jury that Powell would be dangerous in the future. Furthermore, the state court’s decision that the evidence was disclosed in time for Powell to have used it effectively at trial is not unreasonable. Although Powell’s counsel may have had to explain why defense counsel’s opening statement exonerating Meinert and placing all ofthe blame on Powell was being abandoned, they could havedonesoby blaming theStatefor the tardy disclosure of Meinert’s file. The record reflects that Powell’s counsel anticipated that they might need to change the defense theory, notwithstanding counsel’s opening statement exonerating Meinert. In a bench conference about the defense expert’s tests on bullet fragments removed from Officer Ablanedo’s body during the second autopsy, Powell’s counsel stated: “We made the election on our opening statement, but as a matter oflawthe court knows that we’re not boundNo. 06-70008

26 by our opening statement. If this comes back a hit, we have the right to present whatever evidence that we have.” Thus, counsel apparently were prepared to abandon the opening statement and change theories mid-trial if their expert’s tests had produced any evidence tosupport their “two-shooter” theory. Powell’s counsel received Meinert’s parole file on March 1, 1999, the day before Meinert testified for the State. The following day, after the trial court denied Powell’s motion for a three-day adjournment to investigate, and his motion for a mistrial because of the untimely disclosure, Powell’s counsel stated on the record that they had received information from their ballistics expert and that the record could note that he, Powell’s counsel, was “smiling today,” thus indicating, that

even after the Meinert parole file had been disclosed to defense counsel, counsel still had not abandoned presenting a “two-shooter” defense. Under these circumstances, we cannot conclude that the state court unreasonably decided that Powell was not prejudiced by the late disclosure of the materials in Meinert’s parole file. Because the state court’s decision is neither contrary to, nor an unreasonable application of, any clearly established federal law, as determined by the Supreme Court, the district court did not err by denying habeas reliefon Powell’s Brady claim. We will now turn to Powell’s final claim. C. Powell’s final claim is that his Fifth Amendment rights were violated when

an emergency room doctor, who did not provide Miranda warnings to Powell when heexamined Powell f ollowing his arrest, testified for the prosecution about Powell’s answers to questions the doctor asked during the examination. About twelve hours after he was arrested, police officers took Powell to a hospital emergency room to be examined. Dr. Wesley Wallace conducted the examination. Two police officers were present during the examination. Dr.No. 06-70008

27 Wallace was called as a witness for the prosecution. Powell’s counsel objected as follows: This witness testified at the last trial, and there’s a

Jackson v. Denno [, 378 U.S. 368 (1964)] issue ifthey’re going to question him about any statements that Mr. Powell made or any opinions that he reached based on statements that Mr. Powell made. He’s a psychiatrist who examined Mr. Powell. The prosecutor and Powell’s other lawyer immediately pointed out that Dr. Wallace is not a psychiatrist. The prosecutor tendered to the trial court a transcript of Dr. Wallace’s testimony from Powell’s first trial, where Powell’s counsel called Dr. Wallace as a defense witness and was questioned about the statements Powell had made during the examination. The prosecutor argued that any objection had, therefore, been waived. Powell’s counsel responded that Dr. Wallace had testified as a defensewitness at the guilt phase ofthe first trial, where future dangerousness was not at issue, and that this did not constitute a waiver ofany of Powell’s rights at the punishment phase. Counsel stated that, “by opening the door at guilt, you don’t open it at punishment under Estelle v. Smith.” T he trial court overruled the objection and denied the requested hearing. Dr. Wallace testified that he obtained a medical history by talking with Powell and that he conducted a physical and mental examination. According to Dr. Wallace, Powell did not appear to be under the influence of drugs. He testified that he asked Powell if he had recently used drugs, and Powell indic ated that he had not. He testified further that Powell appeared to understand questions and responded appropriately to them, and that he was oriented to place and person, although he seemed unusually nervous. During deliberations, thejury sent a note to thejudge stating: “We want to know if the physician asked him if he had been using drugs and what Mr.No. 06-70008

28 Powell’s response was.” The judge had the court reporter read the requested testimony to the jury. Powell argues that the questioning and observation ofhim by Dr. Wallace, without warning him of his Miranda rights, violated his Fifth and Fourteenth Amendment rights. He relies for support on E stelle v. Smith, 451 U.S. 454 (1981). In E stelle

, a psychiatrist who had conducted a c ourt-ordered pretrial psychiatric competency examination of the defendant, without providing the warnings required by Miranda, testified at thesentencing phase oftrial that the defendant would be a future danger to society. The Supreme Court held that this testimony violated the defendant’s Fifth Amendment privilege against selfincrimination. I d

. at 466. Powell asserts that he reasonably could have believed that what he said might have been used against him, because he was being questioned about illegal drug usage in the presence of police officers. He could also have believed that the purposewas to gain incriminating information since there was no reason for him to be taken to the emergency room inasmuch as he

was not ill or injured. He argues that he was prejudiced by Wallace’s testimony because it tended to rebut any inference the jury might have drawn that his longstanding drug abuse was a factor in the crime, as opposed to an inherent propensity toward violence. He also notes that the prosecutors, in closing arguments, referred toDr. Wallace’stestimony in arguing that Powell was in full control, and not under the influence ofdrugswhen he shot Officer Ablanedoand threw the hand grenade. On direct appeal, Powell argued that the trial court violated his Fifth Amendment right against self-incrimination by overruling his objection to Dr. Wallace’s testimony about statements Powell made during the examination. In rejecting this claim, the Court of Criminal Appeals stated:

To the extent that an issue was preserved concerning the content of Wallace’s testimony, appellant’s trial objection seems to have been directed at “psychiatricNo. 06-70008

29 information” testified to by Wallace. But Wallace, an emergency room physician, testified to appellant’s physical and mental alertness, not to any psychiatric condition. Thus, appellant’s trial objection did not preserve error regarding Wallace’s testimony as to appellant’s mental alertness. The district court noted that, although Powell’s counsel initially referred to Dr. Wallace as a psychiatrist when objecting, he was immediately corrected by the prosecutor and co-defense counsel. The district court concluded that it is at least arguable that Powell’s objection, although not a model of clarity, was adequate to preserve a Fifth Amendment claim. However, the district court further held that Powell was not entitled to reliefon the merits. It reasoned that because Dr. Wallace had not been ordered by a court to examine Powell and had not been asked by the police to gain information from Powell, Dr. Wallace had acted solely in his private capacity as an emergency room physician, and he elicited information from Powell that was relevant to the ostensible purpose of hisexamination. Thecourt concluded that Estellev. Smith did not apply because the doctor was not ordered by a court to conduct the examination, did not conduct a psychiatric examination of Powell, and did not give any testimony regarding Powell’sfuturedangerousness. The district court therefore concluded that the Texas court’s decision was not contrary to, or an unreasonable application of, clearly established law. As the district court noted, the state court held that Powel l failed to preserve a Fifth Amendment claim because his objection was directed at “psychiatric” information. The prosecutor and Powell’s other attorney, however, immediately pointed out that Dr. Wallace was not a psychiatrist, and Powell’s counsel went on to cite Estelle v. Smith. We agree with the district court that Powell’s objection, although not pellucid, was probably adequate to preserve a Fifth Amendment objection. We therefore assume, without deciding, that Powell’s claim is not procedurally barred. As a result of its understanding ofNo. 06-70008

30 Powell’s less-than-clear objection, thestate court did not adjudicate the claim on the merits. When a claim has been fairly presented to the state court, but the state court does not adjudicate the claim on the merits, and the claim is not procedurally defaulted, the deferential AEDPA standards of review do not apply. See Wright v. Quarterman, 470 F.3d 581, 591 (5th Cir. 2006); H enderson v. Cockrell , 333 F.3d 592, 598 (5th Cir. 20 03) . We therefore review the district court’s decision on the merits de novo

. See Graves v. Dretke , 442 F.3d 334, 339 (5th Cir. 2006); see also Henderson, 333 F.3d at 600-01 (holding that AEDPA’s standards of reviewdid not apply to claim that was properly presented to state court but was not adjudicated on the merits by state court); Jonesv. Jones, 163 F.3d 285, 299-300 (5th Cir. 1998) (reviewing de novo petitioner’s ineffective assistance ofcounsel claims that were raised in state court, but not adjudicated on the merits). The district court did not err by concluding that Powell’s rights under Estellev. Smith were not violated. Dr. Wallace was not acting as an agent of the State when he conducted the examination of Powell at the behest of, and in the presence of, the police officers who brought Powell to the emergency room. Dr. Wallace was not court-appointed, he was not a psychiatrist, he did not conduct

a psychiatric examination, and he did not express an opinion at trial regarding Powell’s psychiatric condition. Even assuming that Dr. Wallace’s testimony violated Powell’s Fifth Amendment privilege against self-incrimination because Powell was not advised of his rights prior to Dr. Wallace’s examination, any error in admitting Dr. Wallace’s testimony was harmless, because it did not have a substantial and injurious influence or effect on the verdict. See Penry v. Johnson, 532 U.S. 782, 795 (2001) (applying harmlesserror standard in Brechtv. Abrahamson, 507 U.S. 619 (1993), to petitioner’s claim that admission into evidence of portion of psychiatric report violated his Fifth Amendment rights under E stelle ). To beNo. 06-70008

31 sure, there was no evidence that Powell was under the influence ofdrugs when he shot Officer Ablanedo and threw the grenade. Moreover, the record reflects that twelve hours had elapsed between Powell’s arrest and Dr. Wallace’s examination, and that Powell had been hiding for several hours after he ran from the apartment complex parking lot. Thus Dr. Wallace’s testimony that Powell had denied recent drug use, itself, did not necessarily or directly support the prosecutor’s argument that Powell was in full control and not under the influence of drugs during the episodes of violence. Furthermore, Dr. Wallace’s testimony did not detract from or seriously undermine the defense theory that long-time drug addiction was the factor in the changed character of the defendant from his earlier days and was largely to blame for the crime as opposed to an inherent propensity toward violence. In any event, Dr. Wallace’s testimony regarding Powell’s statements denying recent drug use had already been indicated by two witnesses. Gary Nelson, the school security guard who found Powell hiding under a bush after the shoot-out, testified, without objection, that Powell was coherent and did not have trouble understanding what was said to him. Also, Justin Shaffer, a police officer who took Powell into custody, testified that Powell wascoherent, did not appear to be intoxicated, and seemed to fully understand the Miranda warnings. And of course there is the parenthetic

al fact that, in another context Powell had been given Miranda warnings. For these reasons, Powell is not entitled to relief on his E stelleclaim. IV. The judgment of the district court denying Powell’s petition for federal habeas relief is AFFIRMED.