* Judge King concurs in the denial of the certificate of appealability only.

** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-70010

FRANKLIN DEWAYNE ALIX

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court

For the Southern District of Texas

USDC 4:07-CV-39

Before KING,* DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:**

Petitioner-Appellant,Franklin Dewayne Alix is a Texas death row inmate

who seeks a certificate of appealability to appeal the district court’s denial of his

petition for habeas corpus relief under 28 U.S.C. § 2254. For the reasons set

forth below, we deny the request.

United States Court of Appeals

Fifth Circuit

F I L E D

February 9, 2009

Charles R. Fulbruge III

Clerk
No. 08-70010

2

I. FACTS AND PROCEEDINGS

In the early morning hours of January 3, 1998, Alix shot and killed Eric

Bridgeford while in the course of committing aggravated sexual assault, robbery

and burglary against his sister, Karyl Bridgeford. Alix admitted to robbing

Karyl and forcing her into the trunk of his car but claimed that the sexual

intercourse was consensual, the items taken were gifts, and the homicide was

in self-defense. Alix also claimed to have been coerced into robbing Karyl by

Kevin Smith, a man who allegedly threatened to kill Alix if he did not pay a drug

debt. 

Along with other evidence presented at trial, the prosecution introduced

the testimony of Dr. Delbert Wayne Van Dusen, of the Harris County Medical

Examiner’s Office, who performed the autopsy of Eric. The parties debate the

significance of certain circumstances surrounding an investigation of the

Examiner’s Office and Dr. Van Dusen’s licensing. 

During the sentencing phase of the trial, the State produced evidence of

Alix’s lengthy and violent criminal history. The State also introduced testimony

from the widow of one of Alix’s victims, Gregorio Ramirez, who identified Alix as

the shooter in her husband’s homicide. A piece of bloody gauze recovered from

the scene of this crime was also admitted into evidence. Testing initially

indicated that Alix’s DNA was present on the gauze. This finding was later

proved inconclusive and became the basis for the dismissal without prejudice of

Alix’s first federal habeas petition. Alix was convicted of capital murder on

September 2, 1998 and sentenced to death. 

On March 13, 2000,theTexas Court of Criminal Appeals (“CCA”) affirmed

Alix’s conviction and sentence. Alix sought state habeas relief which was denied.

Alix then filed a timely federal habeas petition along with a motion for discovery

and abatement, raising claims that irregularities being independently

investigated at the Houston Police Department crime lab may have implicated
No. 08-70010

3

DNA evidence used against him. The district court dismissed Alix’s petition

without prejudice to allow for an analysis of these claims in state court. Alix

subsequently filed a second state habeas petition, and then a third petition,

raising additional claims. The CCA denied the second application on the merits

and the third petition as an abuse of writ. 

Thereafter, Alix filed a second federal habeas petition. The district court

denied this petition, declined to issue a certificate of appealability (“COA”), and

granted summary judgment in favor of the State. Alix now appeals, seeking a

COA under 28 U.S.C. § 2254. Alix argues that the district court erred by: 1)

abusing its discretion in failing to conduct an evidentiary hearing; 2) failing to

find that the state courts erroneously applied Napue v. Illinois; 3) failing to find

thatthe state courts erroneously applied Brady v. Maryland; and 4) finding that

Alix was not entitled to relief under Strickland v. Washington. 

II. STANDARD OF REVIEW

A petitioner must obtain a COA before appealing the district court’s denial

of habeas relief. 28 U.S.C. § 2253(c)(1). “This is a jurisdictional prerequisite

because the COA statute mandates that ‘[u]nless a circuit justice or judge issues

a certificate of appealability, an appeal may not be taken to the court of appeals

. . . .’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting 28 U.S.C. §

2253(c)(1)). Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), a COA petitioner “must make a substantial showing of the denial of

a constitutional right, a demonstration that . . . includes showing that

reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (quotation omitted). As the Supreme Court has explained:

The COA determination under § 2253(c) requires an overview of the

claims in the habeas petition and a general assessment of their

merits. We look to the District Court’s application of AEDPA to
No. 08-70010

4

petitioner’s constitutional claims and ask whether that resolution

was debatable amongst jurists of reason. This threshold inquiry

does not require full consideration of the factual or legal bases

adduced in support of the claims. In fact, the statute forbids it.

When a court of appeals sidesteps this process by first deciding the

merits of an appeal, and then justifying its denial of a COA based

on its adjudication of the actual merits, it is in essence deciding an

appeal without jurisdiction.

Miller-El, 537 U.S. at 336–37. 

Where an application for a writ of habeas corpus was adjudicated on the

merits in state court proceedings, a COA is not issued unless the claim: 

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme 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)(1)–(2). 

“Any doubt regarding whether to grant a COA is resolved in favor of the

petitioner, and the severity of the penalty may be considered in making this

determination.” ShisInday v. Quarterman, 511 F.3d 514, 520 (5th Cir. 2007).

“[A] determination of a factual issue made by a State court shall be presumed to

be correct. The applicant shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). 

III. DISCUSSION

A. Evidentiary Hearing

Alix claims that the district court should be reversed because it failed to

grant him an evidentiary hearing before denying his petition on the merits.

Relying on Hall v. Quarterman, 534 F.3d 365 (5th Cir. 2008), Alix argues that

he did not have full access to the discovery process in his state habeas
No. 08-70010

5

proceedings and was therefore denied a full and fair hearing. He further asserts

that the district court’s determination that he was not entitled to an evidentiary

hearing on his federal petition is reviewable under the abuse of discretion

standard set forth in Hall. 

As previously noted, a COA petitioner must make a substantial showing

that he has been deprived of a constitutional right. Slack, 529 U.S. at 484. If no

constitutional violation is asserted, the non-constitutional claims are only

considered to the extent that they are connected to a claim on which a COA is

granted. Lewis v. Quarterman, 272 F.App’x 347, 351 (5th Cir. 2008)

(unpublished). Thus, a petition challenging an evidentiary ruling may only be

entertained as corollary to a constitutional violation. Id.

Alix asserts no denial of a constitutional rightin his evidentiary challenge.

Therefore, no COA is issuable. To the extent that the district court’s denial of

an evidentiary hearing is salient to his remaining challenges, it will be

considered in conjunction with those claims. Furthermore, Alix’s reliance on

Hall is misplaced as this court only reached the issue of whether the petitioner

was entitled to an evidentiary hearing after granting a COA on the claim. Hall,

534 F.3d at 367. 

B. Prosecutorial Misconduct Under Napue

Alix claims that the prosecution introduced false DNA testimony linking

him to the murder of Ramirez and violated his rights through the presentation

of autopsy evidence from Dr. Van Dusen. Alix also contends that, during closing

argument, the prosecution mischaracterized Dr. Van Dusen’s testimony and

improperly argued that Alix fabricated his claims of coercion by Smith. These

acts, he asserts, constitute due process violations under the Fourteenth

Amendment. Alix argues that the district court, as well as the state courts,

misapplied Napue v. Illinois, 360 U.S. 264 (1959), in analyzing his claims of

prosecutorial misconduct by placing the burden on him, rather than the
No. 08-70010

6

prosecution, to establish that he was prejudiced by the challenged conduct. He

also asserts that the district court erred in finding that the prosecution

committed no Napue violation. Further challenging the district court, Alix

argues that it conflated the legal principles of Brady v. Maryland, 373 U.S. 83

(1963), with those set forth in Napue. 

Alix’s arguments fail; reasonable jurists would not debate the correctness

of the district court’s denial of relief. In Napue, the Supreme Court held that,

where a witness provides false testimony, known to be so by the prosecution and

the State does nothing to correct it, the defendant is denied due process. 360

U.S. at 269. In its Napue discussion, the district court laid out the well-settled

rule that, to succeed in a due process violation claim, petitioner must show: “(1)

[the witness] gave false testimony; (2) the falsity was material in that it would

have affected the jury’s verdict; and (3) the prosecution used the testimony

knowing it was false.” May v. Collins, 955 F.2d 299, 315 (5th Cir. 1992). Alix’s

assertion that the burden of proof rests with the prosecution to disprove his

Napue allegations is contrary to clear precedent. There can therefore be no

debate that the district court correctly placed the burden on Alix to prove that

the State knowingly suborned perjury. 

Furthermore, while the district court’s opinion set forth the Brady and

Napue standards jointly, it discussed each claim separately. This analysis was

proper and not contrary to settled federal law. 

In applying Napue and its progeny to Alix’s claims of prosecutorial

misconduct, the district court’s determination that Alix failed to establish such

a violation is neither contrary to nor an unreasonable application of federal law.

The district court denied relief on Alix’s claim that Dr. Van Dusen’s testimony

should have been excluded from trial because he was not licensed in Texas. Alix

argues that the CCA applied the wrong state law in finding that a medical

examiner may delegate duties to deputy examiners, such as Dr. Van Dusen, who
No. 08-70010

7

are not licensed. Even if we assume arguendo that the state court erred, there

is no due process violation claim for evidence improperly admitted under state

law. “We have stated many times that federal habeas corpus relief does not lie

for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (internal

quotations omitted).

With respect to the prosecution’s closing arguments, the district court

found Alix’s claims without merit on two independent grounds: 1) any challenges

to the prosecution’s closing arguments were procedurally barred for failure to

timely object, Wainwright v. Sykes, 433 U.S. 72, 86–87 (1977); and 2) Alix made

no showing of prejudice stemming from these statements even if not waived.

United States v. Wise, 221 F.3d 140, 152 (5th Cir. 2000). The district court

undertook the two-step analysis outlined in Wise: 1) whether the prosecution

made an improper remark, and 2) whether the remark affected the substantive

rights of the defendant. Id. The district court reasoned that the prosecution’s

statements regarding both Dr. Van Dusen’s expert status as well as Alix’s

fabrication of Smith’s existence were permissible under Texas law as

summations of, and reasonable inferences from, the evidence. See Moody v.

State, 827 S.W.2d 875, 894 (Tex.Crim.App. 1992). The district court’s

application of Wise and Moody is an appropriate application of federal law. 

During the sentencing phase of Alix’s trial, to show Alix’s continued

danger to society, along with other evidence linking Alix to the homicide of

Ramirez, the State introduced DNA evidence and the testimony of a chemist.

Both indicated that Alix’s DNA was on the gauze recovered from the crime scene.

The presence of Alix’s DNA was later called into question. As the district court

noted, Alix did not argue—much less carry the burden of showing—that the

testimony regarding the DNA evidence was false, material, and knowingly used

by the prosecution. May, 955 F.2d at 315. Alix simply re-asserts that it is the
No. 08-70010

8

State’s burden to prove that he was not prejudiced by the evidence. The district

court’s denial of relief is not debatable among reasonable jurists. 

Because Alix has failed to meet the requirements for an issuance of a COA

on his Napue claim, there is no basis upon which to consider the district court’s

denial of an evidentiary hearing. 

C. Prosecutorial Misconduct under Brady

Reasserting the facts alleged as grounds for error in his Napue claim, Alix

argues that the district court should be reversed for failure to find a Brady

violation. Based largely on the same analysis discussed above, the district court

found that Alix’s Brady claims also failed. We agree. The district court’s

conclusion is not debatable among reasonable jurists. 

Under Brady, “the suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” 373 U.S. at 87. “[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.” United States

v. Bagley, 473 U.S. 667, 682 (1985). 

The district court carefully reviewed the record and applied the

appropriate legal analysis. The district court found that the prosecution did not

withhold material exculpatory evidence and, even accepting Alix’s assertion that

the inconclusive DNA results were exculpatory, found that Alix failed to show

materiality or a reasonable probability thatthe jury’s determination would have

been different. Furthermore, the district court determined that the DNA

evidence linking Alix to the Ramirez murder was presented as part of a larger

body of proof—including his long history of violence—that Alix posed a continued
No. 08-70010

9

threat to society. The district court’s denial of Alix’s Brady claim was not

contrary to established precedent or an unreasonable application of Brady. 

Having found no violation warranting a COA, there are no grounds upon

which to revisit the district court’s denial of an evidentiary hearing.

D. Ineffective Assistance of Counsel

Alix argues that his trial counsel was ineffective, violating his

constitutional rights under Strickland v. Washington, 466 U.S. 668 (1984). Alix

broadly claims thattrial counsel was lazy and did not adequately investigate his

defense. To illustrate the claimed deficiencies, Alix asserts that trial counsel

should have pursued Dr. Van Dusen’s qualifications more vigorously and should

have discovered an ongoing investigation by the District Attorney into the Harris

County Medical Examiner’s Office much earlier in preparing his defense.

Furthermore, Alix contends that trial counsel should have insisted on the

testimony of District Attorney, Johnny Holmes, regarding this investigation.

Alix claims that accepting as adequate the statements of a deputy prosecutor,

on behalf of the District Attorney’s office, was deficient representation. 

The district court’s finding that Alix had shown no Strickland violation is

not contrary to, or an unreasonable application of, federal law. Under

Strickland, a reversal of a defendant’s sentence is warranted only where a

petitioner has met a two-part test:

First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so serious

that counsel was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced the defense. This

requires showing that counsel's errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable. Unless

a defendant makes both showings, it cannot be said that the

conviction or death sentence resulted from a breakdown in the

adversary process that renders the result unreliable. 
No. 08-70010

10

466 U.S. at 687. Furthermore, “[j]udicial scrutiny of counsel’s performance must

be highly deferential.” Id. at 689. 

In its extensive analysis of Alix’s claim, the district court found that Alix

failed to meet either prong of the Strickland test because counsel’s performance

was neither deficient nor prejudicial. The district court pointed out that trial

counsel diligently prosecuted the case. Trial counsel was aware that Dr. Van

Dusen did not have a Texas license and that the District Attorney was

investigating the Harris County Medical Examiner’s Office. Trial counsel crossexamined Dr. Van Dusen and raised the issue of the ongoing investigation. A

motion to bar Dr. Van Dusen’s testimony was setforth and denied. Trial counsel

re-asserted the initial objections to Dr. Van Dusen’s testimony throughout trial.

After Dr. Van Dusen testified, counsel moved to strike his testimony, sought a

mistrial, and also moved for a continuance. All motions were denied. Having

found no deficient representation, the district court also found no prejudice.

Given the highly deferential standard applied to review of counsel’s performance

and the district court’s thorough review of the record, the district court’s

application of Strickland is a reasonable application of settled federal law. 

As discussed above, when no COA is granted on a matter, the issuance of

an evidentiary hearing on thatissue is also foreclosed. In any event, Alix did not

seek an evidentiary hearing on his Strickland claim from the district court and

the matter is therefore waived. See Lewis, 272 F.App’x at 351–52. 

CONCLUSION

Alix has not made a substantial showing of the denial of a constitutional

right on any of his claims and reasonable jurists would not debate the district

court’s conclusions that the state court appropriately applied federal law.

Therefore, Alix’s petition for COA is DENIED.