* Pursuant to Local Rule 47.5, the Court has determi ned that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 94-11089

DAVID WAYNE STOKER,

Petitioner-Appellant,

versus

WAYNE SCOTT, Director, Texas

Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

________________________________________________

Appeal from the United States District Court for the

Northern District of Texas

(92-CV-148)

________________________________________________

October 25, 1996

Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges. *

GARWOOD, Circuit Judge:

Petitioner-appellant David Wayne Stoker (Stoker) appeals the

dismissal of his application for writ of habeas corpus challenging

his Texas capital murder conviction and death sentence. Stoker

contends that the State failed to discl ose certain evidence

favorable to Stoker in violation of its obligations under Brady v.

Maryland, 83 S.Ct. 1194 ( 1963)

, and that he received ineffective2

assistance of counsel at trial. We affirm.

Facts and Proceedings Below

On June 23, 1987, Stoker was indicted by a grand jury convened

in Hale County, Texas, and charged with capital murder in the

course of commi tting and attempting to commit a robbery in

connection with the November 9, 1986, slaying of convenience store

clerk David Mannrique (Mannrique). S ee Tex. Penal Code Ann. §

19.03(a)(2) (Vernon Supp. 1995).

The evidence adduced during the course of the October 1987

trial held in Plainview, Texas, so far as is relevant to the

present appeal, was as follows. On November 9, 1986, Gracie

Sanchez (Sanchez) reported for wo rk at the Allsup’s Convenience

Store in Hale Center, Texas, at approximately 5:50 a.m. Upon

arriving, Sanchez noted that several customers were waiting in the

store but were not being assisted with their purchases. Sanchez

entered the store and found that the cash register drawers were

open and all of the b ills had been removed. Shortly thereafter,

she noted that the back door to the sto re was open, and upon

entering the storeroom found Mannrique, the night clerk, lying on

the floor in a pool of blood. Although Mannrique was apparently

still alive at the time that he was discovered, he had only a weak

pulse and attempts by med ical personnel to revive him were

unsuccessful. After being transported to the local hospital,

Mannrique was pronounced dead at 7:08 a.m. The medical examiner1 During the guilt/innocence phase of the trial, the jury heard

testimony indicating only that the fourth .22 caliber shell casing

had been recovered from Stok er’s car during an inventory search.

At the punishment phase of the trial, testimony was offered to show

that the inventory search was the result of Stoker’s arrest for

selling crystal methamphetamine to Todd during a “controlled buy”

set up by Todd in cooperation with local law enforcement officers.

3 testified at trial that Mannrique had been shot twice in the back

and once at the top of the head, and that he died as a result of

these wounds. The only evidence found at the scene was three spent

.22 caliber shell casings retrieved from the storeroom floor.

I n April 1987, Carey Todd (Todd), an associate of Stoker’s,

approached local law enforcement officers claiming that he believed

that he could obtain possession of the weapon used to kill

Mannrique. Todd testified that he was told that law enforcement

would be interested in seeing the weapon if he could obtain it. On

May 16, Todd obtained a .22 caliber Ruger automatic pistol claiming

to have received it from Stoker to assist Stoker in killing two

people, Ronnie and Deborah Thompson. Todd turned this weapon over

to Texas Department of Public Safety Officer Claudie Hinkle

(Hinkle). At that time, charges were filed against Todd for

unlawfully carrying a weapon, although both Todd and Hinkle

testified that these were sham charges filed to protect Todd. Todd

also assisted law enforcement officers in recovering a fourth .22

caliber shell casing from Stoker’s car on May 18, 1987. 1

William Albrecht (Albrecht), an FBI firearms examiner, offered

testimony concerning the findings of his examination of the Ruger4

pistol, the shell casings, and a bullet removed from Mannrique’s

body during the autopsy. Albrecht testified that based upon his

microscopic comparison of markings left on the shell casings by the

firing pin, the four shell casings were fired by the Ruger pistol

“to the exclusion of every other firearm.” Albrecht further

testified that he was unable to reach a positive conclusion

regarding whether the bullet recovered from the deceased’s body was

fired by the Ruger pistol due to the rapidly changing microscopic

characteristics of the pistol’s barrel. However, he concluded that

the bullet “was fired from a barrel of a we apon having rifling

characteristics that are consistent with the rifling

characteristics present in” the Ruger.

Peter J. Belcastro (Belcastro), an FBI fingerprint specialist,

testified that two fingerprints on the grips of the pistol when

compared with a fingerprint card bearing Stoker’s prints “were made

by one and the same person and could not have been made by any

other.”

Ronnie Thompson (Thomp son), a friend of Stoker’s, testified

that Stoker had told him before the murder was reported in the

media that he had “[k]illed that guy working at Allsup’s,” and that

he had described to Thompson that he had shot him twice in the back

and once in the head. Thompson also testified that he had known

both Todd and Stoker to carry the Ruger pistol in the past.

Debor ah Thompson, Ronnie’s estranged wife, testified that Stoker

had also told her “that he had gotten in some debt, and he needed5

some money, and he killed the man in the Allsup’s store,”

indicating that he had shot the man three times. She also

i dentified that Ruger pistol as belonging to Stoker. Another

witness, Ronald Dean Hale (Hale), also indicated that he had seen

Stoker in possession of the Ruger pistol, although he was unable to

recall just when.

The defense offered the testimony of Billy Wayne Reed (Reed),

a friend of Stoker’s at whose house S toker had lived for a time,

who stated he saw the Ruger pistol in Stoker’s possession between

Thanksgiving and Christmas of 1986. Reed additionally testified

that two or three weeks after Stoker’s arrest, Todd had stated in

response to a question from Reed: “‘What have you heard, that I

set him [Stoker] up? I did. I set him up to take a big fall.’”

Reed did not disclose this information to authorities prior to the

week of trial.

Danny Stoker, Stoker’s brother, indicated that he had seen the

Ruger pistol in Stoker’s possession around the Christmas holidays.

He further testified that Stoker had repaired the pistol in the

past for Todd.

Following the presentation of evidence and summation in the

guilt/innocence phase of the trial, the jury found Stoker guilty of

capital murder. During the course of its deliberations, the jury

sent only one written query to the judge requesting that the

evidence submitted during trial be brought to the jury room, and

asking, “is it possible to learn the exact date the empty cartridge6

was found in David Stoker’s car?” The court sent the evidence to

the jury room, and instructed the jury that it was bound by the

evidence received during trial with respect to the date that the

empty shell casing was discovered in Stoker’s car.

At the punishment phase of the trial, the prosecution

presented testimony by eight law enforcement officials to the

effect that Sto ker’s reputation in the community for being a

peacef ul, law-abiding citizen was bad. The prosecution

additionally offered the testimony of Dr. James P. Grigson

(Grigson), a forensic psychiatrist, regarding future dangerousness.

Grigson testified based upon a hypothetical tai lored to the

prosecution’s version of the facts of the present case. Grigson

opined that an individual such as the one described in the

hypothetical would “most certainly present a continuing threat to

society,” citing the “cold-blooded” nature of the killing and the

apparent lack of remorse. Grigson further offered:

“We ll, if you used the scale of, say, like one to ten

with one being the psychopath that is only breaking minor

rules, and as you move up the scale where you have more

serious robbery, rape, assaultive, on up to murder, where

you have complete disregard for another human b eing’s

life, if you place that at ten, the person you describe

would probably go over the scale, or past the ten mark.”

Grigson then concluded that the type of person described in the

hypothetical would continue the same type of behavior in the future

regardl ess of his setting. On cross-examination, Grigson

acknowledged that his conclusion was based purely on the

hypothetical facts offered by the prosecution, and that he had2 Stoker did not testify at any phase of his trial. Nor did he

testify at any of the subsequent evidentiary hearings in the state

and federal courts.

7 never examined Stoker, interviewed others acquainted with him, or

investigated his personal history.

Following Grigson’s testimony, the defens e moved for a

continuance in order to secure the appointment of a psychologist or

psychiatrist to testify on Stoker’s behalf. The court denied the

motion for continuance and request for appointment of an expert on

the grounds that it had been advised at the pre-trial hearing that

the defense did not wish to have Stoker examined, and that nothing

had changed since that time to justify the defense’s delay in

lodging this request with the court. The only evidence offered by

the defense during the punishment phase was the testimony of

Stoker’s mother, Jo Ann Stoker. She testified that she had

separated from Stoker’s father when Stoker was sixteen, that Stoker

had quit school to work so that his brothers could continue their

education, and helped to care for his brothers and mother. 2

Following its deliberations, the jury returned affirmative

findings to the special issues submitted to them, and Stoker’s

p unishment was assessed at death. On direct appeal, Stoker’s

conviction and sentence were affirmed by the Texas Court of

Criminal Appeals. Stoker v. State , 788 S.W.2d 1 (Tex. Crim. App.

1989), cert. denied

, 111 S.Ct. 371 (1990). The trial court

scheduled Stoker’s execution to be carried out on August 15, 1991.

Stoker, represented by new counsel, filed a Post-Conviction8

Application for Writ of Habeas Corpus in the state trial court on

May 23, 1991, urging twenty-one points of error. The state filed

no response and the trial court made no findings of fact or

conclusions of law. On August 8, 1991, the Texas Court of Criminal

Appeals issued an order staying Stoker’ s execution and remanding

to the trial court for an evidentiary hearing on claims that: (1)

Stoker had received ineffective assistance of counsel at trial; (2)

the prosecution had failed to disclose that Todd had received the

dismissal of an unrelated charge in exchange for his testimony; (3)

the prosecution had failed to dis close that Todd and Deborah

Thompson received cash payments as rewards for their assistance in

the Stoker’s prosecution; and (4) the pro secution had knowingly

used perjured testimony at trial. The trial court was directed to

enter findings and conclusions with respect to these four

allegations and to “also enter any further findings of fact and

conclusions of law which it deems relevant and appropriate to the

disposition of applicant’s remaining seventeen allegations.” The

trial court held evidentiary hearings on December 12, 1991, and

January 27, 1992. On March 6, 1992, the trial court issued its

extensive Findings of Fact and Conclusions of Law recommending that

all relief be denied. The Texas Court of Criminal Appeals issued

an order on April 20, 1992, de nying the Application for Writ of

Habeas Cor pus. The court stated: “This Court has reviewed the

record. The findings of fact and conclusions of law entered by the

trial court are supported by the record and upon such basis the9

relief sought is denied.”

On July 2, 1992, Stoker, repre sented by his same habeas

counsel, filed the instant Petit ion for Post-Conviction Writ of

Habeas Corpus and Application for Stay of Execution in the United

States District Court for the Northern District of Texas, Lubbock

Division. Stoker’s stay request was granted, and an order issued

referring the matter to a magistrate judge. Stoker filed an

amended habeas petition in October 1992. On February 1, 1993, an

evidentiary hearing was set for March 24, 1993, but was postponed

on Stoker’s motion. The evidentiary hearing was eventually held

October 19 and 20, 1993, before the magistrate judge. On July 11,

1994, the magistrate judge filed his report with the district court

recommending that all relief be denied and the petition dismissed

with prejudice. After being granted extensions, Stoker filed

objections to the magistrate judge’s report on September 23, 1994.

On October 19, 1994, the district court entered an order reciting

that it had considered Stoker’s objections and, on de novo review

of th e record, approved and adopted the magistrate judge’s

findings, conclusions, and recommendation. The court denied all

relief and dismissed the petition with prejudice. A motion to

alter or amend the judgment was subsequently denied. The district

court issued a certificate of probable cause on December 5, 1994.

Discussion

I. Brady Issues

It is a basic and well-established proposition that the10

prosecution’s suppr ession of evidence favorable to the accused

violates the Due Process Clause if it is material to either guilt

or punishment. B rady

, 83 S.Ct. at 1196-97. The prosecution’s

constitutional duty not to suppress embraces both exculpatory and

i mpeachment evidence. U nited States v. Bagley

, 105 S.Ct. 3375,

3380 (1985). The promise of a reward, a more favorable

disposi tion of pending criminal charges, or other inducements in

order to secure the testimony of a witness goes to that witness’s

credibility, and therefore triggers the prosecution’s duty to

disclose under B rady

. S ee Giglio v. United States

, 92 S.Ct. 763

(1972)(promise of nonprosecution); K opycinski v. Scott

, 64 F.3d

223 (5th Cir. 1995)(payment of $1000 Crimestoppers reward); Black

v. Collins

, 962 F.2d 394 (5th Cir.)(reduced plea agreement), cert.

denied , 112 S.Ct. 2983 (1992).

Of course, a new tr ial is required only if the evidence is

material. As the Supreme Court recently explained, “[t]he 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.” Kyles v. Whitley

, 115 S.Ct.

1555, 1566 (1995). For this purpose, the cumulative effect of all

Brady violations is to be evaluated. Kyles at 1569.

Stoker asserts that the prosecution failed to comply with its

obligations under Brady by failing to disclose (1) the dismissal

of pending drug possession charges against Todd in a neighboring11

county in exchange for his testimony; and (2) the payment of a

$1000 Crimestoppers reward to Todd and Deborah Thompson.

A. Dismissal of Pending Drug Charges Against Todd

At the pretrial hearing of August 31, 1987, the state district

court spe cifically instructed the district attorney to provide

defense counsel with the crim inal records of any prospective

witnesses including convictions for felonies or crimes invo lving

moral turpitude as well as any charges pending against such

witnesses at that time. The prosecution submitted to the defense

a criminal history report on Todd prepared by the Texas Department

of Public Safety dated December 10, 1986. The most recent entry on

this criminal history report was a November 23, 1986, arrest by the

Amarillo, Texas, Police Department for unlawfully c arrying a

weapon. However, Stoker submitted to the state habeas court the

incident report prepared by the arresting officer which reflected

that Todd had not only been arrested for unlawfully carrying a

weapon, but also for possession of amphetamines and marihuana

discovere d during an inventory search of Todd’s vehicle. Stoker

also introduced a copy of t he Potter County, Texas, criminal

complaint dated November 24, 1986, charging Todd with possession of

a controlled substance. This charge did not appear on the criminal

history report submitted to the defense. Stoker additionally

submitted the Potter County district attorney’s announcement of

February 27, 1987, that he was ready to proceed to trial in Todd’s

case, a letter from Todd’s attorney Thomas Paige Brittain12

(Brittain) to the Potte r County court indicating that he

represented Todd, and a motion filed on August 31, 1987, by Potter

County assistant district attorney Ebelardo Lopez (Lopez)

requesting t hat the charge be dismissed because “[t]he State is

unable to connect b eyond a reasonable doubt the controlled

substance to this Defendant.”

Stoker maintains that the prosecution failed to disclose that

the drug charge then pending against Todd in Potter County was

dismissed in exchange for Todd’s testi mony against Stoker. The

state habeas court entered the following findings of fact in this

respect:

“36. Applicant’s fifteenth claim, in which he

al leges that the State failed to reveal that

Carey Todd had been granted a dismissal of a

felony drug charge in Potter County in

exchange for his assistance i n the case, was

the subject of a postconviction evidentiary

hearing. Based on the evidentiary hearing

testimony, this court finds that the record

does not support applicant’s contention that

the Potter County drug charge against Carey

Todd was dismissed in exchange for his

testimony against applicant.

37. In respons e to applicant’s fifteenth

allegation, Ebelardo Lopez, Potter County

assistant district attorney in 1987, testified

at the evidentiary hearing that the

outstanding Potter County drug charge against

Carey Todd was dismissed because there was

insufficient evidence to prosecute. The

dismissal motion shows the case was dismissed

for insufficient evidence and the dismissal

was granted by Naomi Harney on the 31st day of

August, 1987. Randall Sims, first assistant

Potter County dis trict attorney, testified

t hat his judgment as a prosecutor would ha v e

led him to dismiss the Potter County charge

against Todd because the evidence was3 Stoker also contends that th e state habeas court’s findings

are not entitled to the presumption of correctness because the

state habeas court applied an erroneous legal standard, thereby

rendering the fact finding procedure inadequate “to afford a full

and fair hearing.” 28 U.S.C. 2254(d)(2). Stoker’s claim in this

regard is patently unmeritorious, and is rejected.

13 insufficient to link Todd to the drugs found.

This court finds the testimony and explanation

by Mr. Lopez and Mr. Sims for the dismissal of

the Potter County drug charge against Carey

Todd to be credible. The court further finds

that Mr. Lopez w as aware that Mr. Todd was a

witness in the case against applicant in

Plainview. The applicant and his counsel at

trial were aware of the pending charges as

evidenced by the pretrial hearing of August

31, 1987.”

The magistrate judge found there was ample evidence in the record

to justify these findings, and therefore applied the presumption of

correctness provided for under 28 U.S.C. § 2254(d). Of course, we

are bound to apply the presumption of correctness to such state

findings unless it is established that one of the exceptions to

section 2254(d) applies. Sumner v. Mata , 101 S.Ct. 764 (1981).

Stoker argues that we should not apply the presumption of

correctness to the state habeas court’s findings because they are

not fairly supported by the record. 3 S ee section 2254(d)( 8).

Stoker points to the testimony of Thomas Page Brittain (Brittain),

the attorney who represented Todd on the drug charge in Potter

County. Brittain testified that he told Potter County prosecutors

that his client had information about the Hale County crime, and

that he did so in the hope that his client would receive “some kind

of consideration in his treatment

. . . in the case in Potter4 How ever, when asked whether the information influenced the

Potter County district attorney’s decision to dismiss the charge,

Brittain replied: “I don’t know exactly what influenced them, no,

sir. I——I assumed that that was what influenced them, yes.”

5 Terry McEachern was the district attorney for Hale and Swisher

Counties, and was the prosecutor in Stoker’s trial.

6 In his reply brief, Stoker mentions the testimony of his

cousin, Gale Keiser. At the federal evidentiary hearing below,

Keiser testified that she heard Ronnie Thompson state that “[t]he

reason why [Todd] was helping to set [Stoker] up is be cause they

were going to drop some charges in Amarillo against him.” Keiser’s

14 C ounty.” 4 Stoker also emphasizes the notation in Todd’s file in

the Potter County district attorney’s off ice stating “Dismissed:

this [defendant] helped Terry Mc Eachern (296-5229) D.A. solve a

murder case.” The affidavit of Virginia Lindsay (Lindsay), an

attorney assisting in the investigation of Stoker’s habeas claims,

indicates that former Potter County assistant district attorney

Ebelardo Lopez (Lopez) reviewed Todd’s file in her presence , and

that he held up a message slip indica ting that he had received a

call from Terry McEachern on April 20 regarding Carey Todd. 5 There

was apparently an additional nota tion in Lopez’s handwriting

stating, “[c]alled Terry.” Lopez, who was by then a state district

judge, also submitted an affidavit indicating only that the

telephone slip had contained the names Terry McEachern and Carey

Todd. However, the telephone slip itself subsequently disappeared,

and therefore was not produced. Based on this evidence, Stoker

asserts that the Hale County district attorney commun icated with

the Potter County district attorney’s office regarding Todd’s

case. 6 The state habeas court found that Lopez knew that Todd wasaffidavit submitted at the state evidentiary h earing similarly

indicated Ronnie Thompson told her “that Carey Todd told him that

he was setting David up so that Carey could stay out of jail on a

charge in Randall County.”

15 a witness in the Stoker murder case. Nevertheless, the state

habeas court rejected Sto ker’s argument that the drug charge

against Todd was di smissed in exchange for his testimony against

Stoker.

We note that there is additional evidence in the record of the

state habeas hearing that bears on the dismissal of the Potter

County drug charge. Lopez testified that the reason that the

Potter County drug charge was dropped was because the State was

unable to connect the controlled substance to Todd beyond a

reasonable doubt; that he had not dismissed the case at the request

of McEachern; and that McEachern never asked him to do so. Randall

Sims (S ims), an assistant district attorney for Potter County,

testified that he had no knowledge of McEachern’s “intervening in

that case,” and that if there were insufficient evidence to connect

a defendant to the drugs, such a charge would be dismissed by his

office. McEachern additionally testified at the state evidentiary

hearing that he did not discuss with the Potter County district

attorney “the possibility of him dismissing any charge against

Carey Todd in Potter County in re turn for his testimony in Hale

County,” and that he made no promise to Todd that the charges

again st him would be dismissed in exchange for his testimony

against Stoker and knew of no one who did. Todd himself testified16

that all he knew about the drug charge was that his “attorney took

care of it,” and answered “no” when asked by McEachern if he was

promised assistance in getting the charge dropped. Todd further

testified he had no knowledge that McEachern knew about the

Amarillo case, and that McEachern never told him or anyone he knew

that he (McEachern) “could assist in getting any charges dropped or

anything like that about any Amarillo cases.” Finally, Brittain,

who represented Todd on the Potter County charge, indicated that he

knew of no involvement by McEachern, or by his staff, or by any

Hale or Swisher County law enforcement officer, in the dismissal,

that he had not talked about the dismissal with McEachern, and that

he had no reason to question the reason for the dismissal given by

Lopez in the motion submitted to the Potter County court.

While there is conflicting evidence in the r ecord, “[t]he

determination w hether the record fairly supports a state court

finding requires a high measure of deference.” James v. Whitley

,

39 F.3d 607, 610 (5th Cir. 1994), cert. denied

, 11 5 S.Ct. 1704

(1995). “Mere disagreement with a state court finding does not

entitle a federal court to overturn it.” I d

. The state habeas

court specifically credited Lopez’s testimony as to the reason for

the dismissal. S ee Self v. Collins

, 973 F.2d 1198, 1214 (5th Cir.

1992)(“‘§ 2254(d) gives federal habeas courts no license to

redetermine credibility of witnesses whose demeanor has been

observed by the state trial court, but not by them.’”)(quoting

Marshall v. Lonberger

, 103 S.Ct. 843, 851 (1983), cert. denied

, 1137 We do find, however, that t he state habeas court’s finding

that prior to or at trial Stoker and his counsel were aware of the

pending drug charge against Todd is not supported by the record.

Nonetheless, this does not undermine our conclusion that no Brady

violation has been proven. The failure to disclose the pending

drug charge would be material on the facts of the present case only

if it were proven that there was some character of promise of

favorable treatment in exchange for Todd’s testimony.

17 S.Ct. 1613 (1993). There was substantial testimony of record by

McEachern, Lopez, and Todd as to the absence of any such agreement,

and Brittain also t estified that he was aware of no agreement to

this end. The foregoing evidence leads us to conclude that the

state habeas court’s finding that there was no agreement that the

Potter County drug charge wou ld be dismissed in exchange for

Todd’s testimony is fairly and adequately supported by the record,

and is therefore entitled to section 2254's pre sumption of

correctness. In the absence of any such agreement, Todd’s B rady

claim fails. 7

B. Crimestoppers Reward

Stoker also argues that the district court erred in rejecting

his contention that the pro secution failed to disclose the fact

that Todd and Deborah Thompson received a $1,000 reward for their

testimony against Stoker. In this regard, the state habeas court

made the following findings:

“38. Applicant’s sixteenth claim that the State

failed to disclose that witnesses Deborah

Thompson and Carey Todd received cash payments

as rewards for their testimony against him,

was addressed in the postconviction

ev identiary hearing. Based on the record of

that hearing, the court finds no credible

evidence that either Todd or Thompson received18 the Crimestoppers reward in exchange for their

testimony against David Stoker.

39. Shortly after the murder, the convenience

store which employed victim, David Mannrique,

posted a $1000 reward for information leading

to the arrest and conviction of the

perpetrator. The offer was placed with Hale

Center Crimestoppers. Claude Burnett,

Crimesto ppers Director, testified that after

the conclusion of applicant’s trial, on

October 27, 1987, he received a telephone call

to deposit the Crimestoppers money into the

Hale County Bank. He had no knowledge to whom

t he money was paid. Talmadge Todd, Carey

Todd’s father, testified that he wired $1000

to his son in Honey Grove, Texas, where Carey

moved after the trial because he f eared for

his life. Carey Todd testified that after the

trial, on November 11, 1987, he received $1000

in Crimestopper’s money, and $300 from the

Swisher County Police Department to help him

move to Honey Grove. He and Debbie Thompson

split th e $1000. Todd never spoke with the

Hale Center Police Department concerning the

case. He further testified that District

Attorney Terry McEachern never offered him

anything, and that he had no knowledge that he

would be paid a Crimestopper’s reward until

the trial was over. Riley Rogers testified

that Terry McEachern and the (Hale and Swisher

C ounty) district attorney’s office h a s

‘nothing to do’ with Crimestoppers or the

Crime Line. Riley Rogers is the county

attorney’s investigator for Swisher County,

Texas.

40. This court specifically finds that neither the

district attorney’s office for Hale and

Swisher counties nor Terry McEachern, district

attorney for those coun ties, were in any way

involved with Crime Line, Crimestoppers, or

otherwise had anything to do with awarding the

reward received by Deborah Thompson and Carey

Todd after the conclusion of Stoker’s trial

for information they provided leading to the

arrest and conviction of applicant David

Stoker. No request was made for the reward

until after the trial. The reward was for

evidence leading to conviction. No promise8 Stoker also cites the testimony of his cousin, Gale Keiser, at

the federal evidentiary hearing. In response to a question

regarding whether Ronnie Thompson had told her that Todd was being

pa id for his testimony, Keiser replied: “He said that it was a

setup, that they were setting David up and that Kerry (sic) was

being paid.” Keiser offered a similar statement in her affidavit

at the state evidentiary hearing stating “Ronnie s aid [Todd and

Deborah Thompson] were getting money, and both expected to get a

reward for what they were doing.”

19 was made to Car ey Todd or Deborah Thompson

that they would receive a reward for their

testimony.” (Internal record citations

omitted).

Stoker maintains that these findings are not fairly supported

by the record, and therefore are not entitled to a presumption of

correctness. Stoker first argues that there is evidence that Todd

and Deborah Thompson told several other witnesses that they had

been promised money in exchange for their cooperation in the case.

Todd cites the trial testimony of Wayne Reed in which he indicated

that Deborah Thompson had told him that Todd had been offered money

in exchange for the Ruger pistol. Of course, this provides no

evidentiary support for the existence of any promise to pay Todd or

Deborah Thompson for their testimony at trial. Stoker also cites

the affidav it of Virginia Lindsay submitted at the state habeas

hearing about her November 6, 1991, interview with Todd regarding

the Crimestoppers reward. Lindsay states in this affidavit that

Todd “said Terry McEachern had offered him and Debbie Thompson

$1,000 for their tes timony. He also said that when they got the

money, they split it fifty-fifty, and that they were told about the

money before they testified. 89 Richard Cordell (Cordell), the chief of police for Hale Center

in 1986 and 1987, testified that at the time of the Mannrique

murder Hale Center did not have its own Crimestoppers program, that

Crimestoppers was run through the Plainview, Hale County Crime

Line, and that it was not administered by the Hale Center Police

Department.

Riley Rogers (Rogers), who had worked as an investigator for

the Hale and Swisher County District Attorney, testified initially

at the state habeas hearing that he had no involvement with

Crimestoppers and that he knew of no rewards paid in connection

with the Mannrique case. However, Stoker’s counsel subpoenaed a

bank draft issued by the First National Bank of Hale Center,

payable to Crime Line, and bearing Rogers’ signature. At the

continuation of the state evidentiary hearing on January 27, 1992,

Rogers agreed with the prosecutor that it was possible that he had

received the $1000 and transferred it to Talmadge Todd after the

trial. However, he also then testified that he had no knowledge of

any monies being promised to Carey Todd in exchange for testimony.

Claude Burnett (Burnett), a local businessman, testified at

the state evidentiary hearing that he had helped organize the Hale

Center Crime Line, that a reward had been offered in connection

with the Mannrique case, and that he believed that he had discussed

payment of the reward with Cordell as chief of police, although he

expressed some uncertainty on this point.

20 Stoker additionally emphasizes the reluctance of the

prosecution witnesses to discuss the circumstances surrounding the

payment of the reward money and their sometimes contradictory

statements. 9 Indeed, the magistrate judge below observed that

“[i]t certainly appears there were prosecution witnesse s at the

State Evidentiary Hearing who were, to put it generously, reluctant

to discuss the circumstances surrounding the payment of the Crime

Stoppers reward.” Nonetheless, the magistrate judge properly

concluded that “whatever suspicion might be engendered by the

stubborn recalcitrance of certain witnesses to testify accurately

and fully about the procedures and post trial events involving the

Crime Stoppers payment is not evidence that payment was made in the21

fashion as alleged by Stoker.”

Todd acknowledged at the state evidentiary hearing that he had

received $1000 from Crimestoppers and that he had split the reward

money with Deborah Thompson. In response to questioning, Todd

indicated that neither McEachern nor any law enforcement personnel

had promised to give him money in exchange for his testimony.

Although Todd initially stated he did not know when he became aware

of the Crimestoppers reward money, he later testified in response

to an inquiry from the court that he did not know he would be paid

a reward until after the trial. McEachern also testified that as

a general matter “[w]e don’t pay co unty taxpayer’s (sic) monies,

you know, to people to get up on the stand to testify,” and that he

did not even learn of the payment of the Crimestoppers reward until

shortly before the state evidentiary hearing.

We find fair and adequate support in the record for the state

habeas court’s findings, and therefore must ac cord them the

presumption of correctness that they are due. Clearly the state

habeas court’s finding that there was no promised payment of a

reward in exchange for testimony rests upon its assessment of the

credibility of the witnesses before it, and we are not empowered to

second-guess such determinations. S ee Self

, 973 F.2d at 1214

(“‘When

. . . a trial court fails to render express findings on

credibility but makes a ruling that d epends upon an implicit

determination t hat credits one witness’s testimony as being

truthful, or implicitly discredits another’s, such determinations22

are entitled to the same presumption of correctness that they would

have been accorded had they been made explicitly”)(quoting Lavernia

v. Lynaugh

, 845 F.2d 493, 500 (5th Cir. 1988)). Therefore,

Stoker’s second Brady claim must also fail.

II. Ineffective Assistance of Counsel

In reviewin g a habeas petitioner’s claim for ineffective

assistance of counsel, the state habeas court’s findin gs of

historic fact are entitled to a presumption of correctness under 28

U.S.C. § 2254(d), but the deficient performance and prejudice

components of the S trickland standard are mixed questions of law

and fact which must be reviewed d e novo

. A mos v. Scott

, 61 F. 3 d

333, 348 (5th Cir.), cert. denied , 116 S.Ct. 557 (1995).

In order to obtain habeas relief based upon a claim of

ineff ective assistance of counsel, a petitioner must demonstrate

that (1) counsel’s performance was deficient and (2) that counsel’s

deficient performance prejudiced the defendant. S trickland v.

W ashington , 104 S.Ct. 2052, 2064 (1984). To demonstrate that

counsel’s performance was deficient, the petitioner must show that

counsel’s performance fell bel ow an objective standard of

reasonableness. I d

. at 2064-65. There exists a “strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id . at 2065. The prejudice

component of the Strickland standard will be satisfied only if

“there is a reasonable probability that, but for counsel’s23

unprofessional error, the result of the proceeding would have been

different.” I d

. at 2068. “A reasonable probability is a

probability sufficient to undermine the confidence in the outcome.”

Id

. As the S trickland standard is conjunctive, a court may dispose

of an ineffective assistance of counsel claim based upon the

petitioner’s failure to satisfy either prong of the test. A mos

, 61

F.3d at 348.

A. Failure to Introduce Evidence That Car in

Which Fourth Shell Casing Found Purchased

Several Months After the Murder

Stoker argues that his trial counsel provided constitutionally

ineffective assistance because he failed to introduce evidence that

the car from which the fourth empty shell casing was retrieved on

May 18, 1987, had been purchased in Apr il 1987, some six months

after the murder. Ron Felty (Felty), Stoker’s trial counsel,

acknowledged at the state evidentiary hearing that he was aware

that St oker had not then owned the car “all that long,” and that

Felty had failed to introduce this evidence at trial (there was no

trial evidence whatever as to even approximately how long prior to

May 18, 1987, Stoker had had the car). Stoker urges that this

piece of evidence was crucial to his defense based on the fact that

the jury’s note to the trial court specifically inquired as to the

exact date that the shell casing was found in Stoker’s car.

The magistrate judge rejected this claim, reasoning:

“There was no evi dence of a credible nature indicating

the shell casings found in the automobile were fired from

the murder weapon at the moment of the murder. It was24

simply evidence there were shell casings in the Stoker

vehicle indicating that Stoker or someone associated with

him had fired the weapon, an d the shell casings had

dropped in the car. It was not crucial evidence. It was

simply another circumstance of Stoker’s possession of the

weapon. Even if the car had only been purchased a day

before Stoker was arrested, it still would be admissible

and relevant evidence havi ng the same impact. This is

really a frivolous claim.”

We are inclined to agree. Even assuming a rguendo that the failure

to introduce this evidence constituted deficient performance,

Stoker simply cannot establish any “reasona ble probability” that

but for Felty’s failure to introduce evidence that the car had only

recently been purchased the outcome would have been different. As

the magistrate judge properly observed, this was simply another

piece of evidence connecting Stoker to the murder weapon. And, it

w as essentially undisputed that Stoker had been in possession of

the gun at least on several occasions after the murder and several

months before April 1987, including November and December 1986. We

conclude that Stoker fails to establish prejudice under Strickland

.

B. Failure to Present Addition al Mitigating

Evidence

Stoker additionally contends that he received constitutionally

ineffective assistance at trial because Felty failed to adequately

investigate and present eviden ce in mitigation at the punishment

phase of the trial. In particular, Stoker cites the testimony of

his cousin, Gale Keiser, regardi ng Stoker’s caring relationship

with his younger siblings and his mother, his aid to his

grandmother after she suffered a stroke, and his advice and comfort10 With respect to St oker’s claim that he received ineffective

assistance due to Felty’s failure to conduct a reasonable

sentencing investigation, the state habeas court specifically found

as follows:

“29. This court finds that counsel Ron Felty

conducted a reasonable investigation. He

interviewed tho se members of applicant’s

family who were willing to cooperate with

applicant’s defense, and followed any witness

leads provided by applicant and his family.

Additional information, which applicant now

contends should have been used to undermine

testimony of the state’s witnesses remained

undisclosed for tactical reasons.”

The evidence adequately supports the underlying facts so found, and

we agree that on such findings the investigation was not

constitutionally deficient. Furthermore, as noted above, the

evidence to be thus produced was merely cumulative of the testimony

offered by Stoker’s mother, and Stoker was not prejudiced by the

failure to investigate further. There is no reasonable probability

of a different result had such further investigation been

undertaken.

25 to Keiser when she encountered marital difficulties. Stoker also

points to the affidavits of former employers and co-workers to the

effect that Stoker was a good worker and did not use drugs or

alcohol on the job. This evidence is cumulative of the testimony

presented by his mother during the punishment phase of the trial.

In light of the “ strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance,”

Strickland , 104 S.Ct. at 2065, we cannot say that Felty’s failure

to offer this evidence satisfies the deficient performance prong of

Strickland

. Nor is the requisite prejudice shown. There is no

reasonable probability of a different result ha d these witnesses

been called. 1026

Stoker also urges that Felty should have introduced copies of

his Army records, some of which contained positive e valuations.

However, these records also reflected that Stoker was given an

early discharge, albeit an honorable one, due to an alcohol

problem. Felty, a local practitioner and former district attorney

who had extensive experience before Hale County juries, testified:

“if we showed a continuing use of narcotics, alcohol use as the

r eason for being taken out of the military, that would not , you

know, go over with a Ha le County jury. A Hale County jury is

tougher than an old billy.” As we have previously observed,

“failure to present mitigating evid ence ‘if based on an informed

and r easoned practical judgment, is well within the range of

practical choices not to be second-guessed.’” Wilkerson v. Collins

,

950 F.2d 1054, 1065 (5th Cir. 1992)(quoting Mattheson v. King

, 751

F.2d 1432, 1441 (5th Cir. 1985)), cert. denied

, 113 S.Ct. 3035

(1993). Again, Stoker fails to overcome the strong presumption

that this tactical decision was reasonable under the circumstances,

and therefore fails to satisfy the deficient performance prong of

Strickland

.

Furthermore, Stoker has failed to show that either the

testimony cited above or the mentioned records constitute “evidence

of sufficient quality and force” which “if introduced, would have

more likely than not persuaded the jury that the death penalty was

unwarranted.” M a nn v. Scott , 41 F.3d 968, 984 (5th Cir. 1994),

cert. denied

, 115 S.Ct. 1977 (1995). Therefore, Stoker also fails11 Although Felty was in error as to the admissibility of

evidence of abuse under the Texas capital sentencing scheme at the

27 to satisfy the prejudice prong of Strickland

.

Stoker further asserts that Felty erroneously understood Texas

law to preclude the presentation of any mitigating evidence during

the punishment phase of a capital trial. Stoker relies for this

argument upon Felty’s statement at the state evidentiary hearing

that the “death penalty statute did not p rovide, basically, for

instruction regarding mitigating evidence for a jury to consider.

And the way I interpret the cases, that typ e of evidence was not

admissible.” However, this isolated fragment has been removed from

its proper context. When viewed in its full surroundings, this

statement reflects a more limited meaning:

“Q: I had asked you about the evidence of abuse in

the sentencing phase, and you said you thought

it was not admissible under the statute at

that time.

A: Correct.

Q: What did you mean by that?

A: That the death penalty statute did not

provide, basically, for instruction regarding

mitigating evidence for a jury to consider.

A nd the way I interpret the cases, that type

of evidence was not admissible.”

The phrase “that type of evidence” refers only to evidence of past

acts of abuse committed against Stoker, not to all mitigating

evidence. Indeed, the fact that Felty offered the testimony of

Stoker’s mother in mitigatio n clearly refutes Stoker’s present

claim that Felty understood Texas law to preclude the presentation

of any mitigating evidence during the punishment phase. 11time, s ee, e.g., May v. Collins , 904 F.2d 228, 232 (5th Cir.

1990)(in dicating that “[h]ad [defendant] offered evidence of his

abusive childhood and his resultant neurological damage , it is

quite clear under Texas l aw that evidence would have been

admissible”), cert. denied

, 111 S.Ct. 770 (1991), he was correct

regarding the availability of an instruction as this case was tried

in 1987 before Penry v. Lynaugh , 109 S.Ct. 2934 (1989). However,

Stoker does not argue in his brief before this Court that he

received ineffective assistance of counsel due to Felty’s failure

to present evidence of past abuse, and this issue is therefore

waived. Nor does the record show available evidence of abuse such

that had it been introduced there is any reasonable probability of

a different result. Furthermore, Felty testified several times

during the course of these proceedings that neither Stoker nor his

family ever told him of any abuse. Moreover, Felty stated in his

affidavit of August 28, 1991, that he would not have presented such

evidence to the jury as he believed it would have been an

aggravating factor and would have bolstered the State’s case on the

future dangerousness issue. Counsel is not constitutionally

deficient for failing to foresee Penry

. See May at 234. Even if

this claim had been properly presented on appeal, we would have

r ejected it as failing both prongs of the Strickland tes t. See,

e.g., Andrews v. Collins , 21 F.3d 612, 623-25 (5th Cir. 1994).

12 There is no dispute between the parties that Felty was made

aware during the pretrial hearing of the State’s intention to call

Grigson as an expert witness at the punishment phase of the trial,

and that Felty elected not to request the appointment of a defense

expert at that time.

28 C. Failure to Procure Mental Health Expert to

Rebut Dr. Grigson’s Testimony

Lastly, Stoker submits that his trial cou nsel rendered

constitutionally ineffective assistance for failing to procur e a

defense mental health expert to rebut the testimony of Dr. Grigson

regarding future dangerousness at the sentencing phase of the

trial. 12

Stoker argues that Felty’s failure to rebut Grigson’s

testimony cannot be considered reasonable trial strategy as it was13 At the evidentiary hearing, Felty testified:

“Q: O ne of the reasons that you decided not t o

call a mental he alth expert was because of

your fear that evidence of these other crimes

would come in, is that right?

A: Yes, sir.

Q: Were you aware of the fact that under the

Sentencing Statute——Pardon me, under the Death

Penalty Statute, that in the sentencing phase

of a capi tal case, just about anything can

come in?

A: Anything. It’s just an open, it’s an open

ball game.

Q: All right. Almost wide open?

A: Yes.

Q: Were you aware of the fact that had the

prosecution decided, decided to put in this

evidence about these prior cases, they could

have done it anyway?

A: Yes, sir. The same thing about the deal up in

Randall County.

Q: Right.

29 based upon an erroneous understanding of the law. In support of

this argument, Stoker maintains that Felty misunderstood the Texas

capital sentencing scheme and declined to engage an expert based on

the erroneou s belief that information contained in the expert’s

report might open the door to the admission of otherwise

inadmissible evidence of extraneous unadjudicated offenses at the

punishment phase by the prosecution. In fact, Texas permits the

introduction of any relevant evidence during the punishment phase,

including extraneous unadjudicated offenses. S ee Powell v. State,

898 S.W.2d 821, 830 (Tex. Crim. App. 1994), cert. denied

, 116 S.Ct.

524 (1995). However, Stoker’s factual assertion in this respect is

contradicted by F elty’s testimony at the evidentiary hearing

bel ow. 1 3 The district court concluded, and we agree, that FeltyA: The quote “suspected homicide” up there.

Q: So this trial strategy not to call a mental

health expert, not calling him wouldn’t have

made any difference, because if the State

wanted to put it in, it would have gone in

anyway?

A: Yes, sir.

Q: You didn’t get Mr. Stoker examined because, in

r esponse to the question put by counsel, you

believe that the prosecution would have access

to that information, is that right?

A: They would have subpoenaed him.”

14 At the federal ev identiary hearing, Sam Ogan (Ogan), a

criminal defense attorney offered by Stoker, testified based upon

a hypothetical tailored to the facts of this case regarding the

need for expert psychiatric testimony. The hypothetical asked Ogan

to assume that he was aware his client was suspected of “possible

homicides and drug activities.” Ogan replied: “Well, I would say

that based on the hypothetical, it might be reasonable not to put

a psychologist or a psychiatrist who has examined the client on the

sta nd, I mean, assuming damaging information in the doctor’s

report. If, generally under the law, if the psychologist or

psychiatrist testifies, then the State would be privy to the report

that he made.” Although Ogan went on to say that he did not

believe it was reasonable not to have the client examined at all,

Stoker complains here of the failure to put on expert testimony to

rebut Grigson, not of the failure to have him examined in the first

place. So Stoker’s own witness in fact validated the

reasonableness of Felty’s strategy. S ee also Schneider v. Lynaugh

, 835 F.2d 570, 576-77 (5th Cir.)(State’s use of testimony by

30 made a strategic de cision not to have his client examined by a

court-appointed psychologist or psychiatrist because the examining

expert might uncover evidence with regard to other crimes for which

Stoker was being investigated . While Felty was aware that

extraneous offenses were admissible during the punishment phase, he

made the strategic decision not to have his client examined because

he feared that his own expert might provide the State with

additional informati on linking his client to those crimes when

subjected to cross-examination. 14psychiatrist appointed to examine defendant for competency a t

defendant’s request to rebut other psychiatric evidence offered by

defendant during punishment phase did not violate Fifth Amendment

despite absence of M iranda warning because defendant put men tal

state in issue), cert. denied

, 109 S.Ct. 87 (1988); see also Soria

v. Sta te , 1996 WL 514830, at *4-10 (Tex. Crim. App. Sept. 11,

1996)(defendant constructively places himself on stand when he

presents psychiatric testimony waiving Fifth Amendment privilege,

thereby allowing court to compel examination by State’s expert for

rebuttal).

To be sure, as noted above, after the state closed its

punishment sta ge evidence on October 27, 1987, defense counsel

unsuccessfully moved for a continuance to secure court funds “for

the defense to have a witness, psychiatric testimony,” and

indicated they had unsuccessfully looked for a psychi atrist “the

last week. ” The defense also wanted an expert on parole law.

After the court stated to defen se counsel that at the August 31,

1987, pre-trial hearing “you did not want to have your client

examined. You did not want that sort of testimony,” defense

counsel stated:

“ the nature and circumstances as well as the evidence

available to the Defense has chan ged almost daily

throughout this trial. And at certain times, you know,

based on the evidence we have, the Defense would have to

take a certain course in defending Mr. Stoker. As we are

provided new evidence of certain information being known

to Mr. McEachern or new witnesses provided, you know, it

changes the basis of our Defense, too, Judge.”

Defense counsel pointed to nothing specifically new, however. In

substance, it appears that the defense rethought or changed its

approach. But this does not mean that the earlier approach was

outside the “wide range of professionally competent assistance”

recognized in Strickland

, 104 S.Ct. at 2066, and so many other

cases. As we said in S mith v. Collins

, 977 F.2d 951, 960 (5th Cir.

1992), cert denied , 114 S.Ct. 97 (1993), “[h]aving a ‘wide range’

necessarily allows for situations in which each of two opposite

courses of action may properly fall within the ambit of acceptable

professional conduct.”

31 In any event, the expert psychological testimony which Stoker

offered during the course of the habeas proceedings simply fails to

demonstrate prejudice. Dr. Linda Foss (Foss), a clinical

psychologist, found based on her examination that Stoker possessed32

“average intelligence,” and her report indicated that “[i]nadequate

soci alization left him with rough manners and habits and

rebellious attitude, but at the same time there’s evidence that he

held himself to a moral code that included

. . . honesty,

responsibility, and fair play.” Foss also testified that she found

no evidence of psychotic personality, homicidal or suicidal

tendencies. She finally indicated that a description of a single

incident without an examination and some knowledge of the

individual’s personal history would be inadequa te to form an

opinion as to future dang erousness. Dr. Harry Munsinger

(Munsinger), also a clinical psychologist, testified at the federal

evidentiary hearing that Stoker was a passive/aggressive

personality. He further opined, “I think, based on my analysis of

his personality structure, that given certain conditions such as he

is not under the influence of alcohol and he doesn’t have a gun and

he’s not provoked, that the probability is that he will not be

dangerous in the future.” Munsinger also was of the opinion that

it was not possible to predict future dangerousness solely on the

basis of the hypothetical presented to Grigson as it contained a

“hidden predicate” wh ich was that the person possessed a

psychopathic personality disorder. Munsinger also testified that

a psychopathic personality is an “all-or-nothing phenomenon,” and

cannot be quantified on a scale of one to ten as Grigson testified.

In short, the experts offered by Stoker simply fail to rebut

the main thrust of Grigson’s testimony as to future dangerousness.33

Although Foss testified that a hypothetical of the sort given to

Grigson was an inadequate basis from which to form an opinion

regarding future dangerou sness, she offered no such opinion

herse lf. Munsinger’s assessment was similarly less than

encouraging as he indicated that Stoker would not be dangerous in

the future provided that “he is not under the influence of alcohol

and he doesn’t hav e a gun a nd he’s not provoked.” (Emphasis

added). While both experts testified that Grigson based his

opinion on inadequate information, the fact that Grig son had

testified solely on the basis of the hypothetical facts given him,

and had neither interview ed Stoker nor reviewed his personal

history, was placed before the jury. Given the nature of the

expert testimony proffered by Stoker, we are unable to say that

this evide nce “if introduced, would have more likely than not

persuaded the jury that the death penalty was unwarranted.” M ann,

41 F.3d at 984. Nothing in this respect (or otherwise) undermines

confidence in the verdict.

Conclusion

For the foregoing reasons, the judgment of the district court

is hereby

AFFIRMED.