* Pursuant to 5 TH C IR

. R. 47.5, the court has determined th a t

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 98-51022

______________________

KENNETH ALLEN McDUFF,

Petitioner-Appellant,

versus

GARY L. JOHNSON, Director,

Texas Department of Criminal

Justice, Institutional Division,

Respondent-Appellee.

----------------------- Appeal from the United States District Court for the

Western District of Texas, Waco

(98-CA-147)

----------------------- November 17, 1998

Before JOLLY, SMITH, and WIENER, Circuit Judges.

BY THE COURT: *

Kenneth Allen McDu ff was sentenced to death after being

convicted of capital murder in Texas state court. He challenged

his conviction twice at the state level--once in his direct

criminal appeal and next in his subsequent state court habeas

petition. The United States Supreme Court denied writ of

certiorari in Mc Duff’s criminal appeal and the Texas Court of

Criminal Appeals also denied him state habeas relief. McDuff next-2-

came to the federal courts where the district court denied him

federal habeas relief. He now applies this court for a Certificate

of Appealability (“COA”) un der the Antiterrorism and Effective

Death Penalty Act of 1996 (the “AEDPA”), 28 U.S.C. § 2253.

McDuff’s application for COA essentially asserts two bases for

federal habeas relief. First, McDuff argues that the State’s

expert testimony, that the hairs found on the deceased’s body and

in her car bore identical characteristics to his hair, was

effectively false. Or perhaps it was effectively false. According

to McDuff, there is a cha nce, which was not scientifically

available to him at trial, that Mitochondrial DNA testing could

exclude him as a source of the hair fragments found on the deceased

and in her car. Such a conclusion, McDuff argues, would render the

State’s expert testimony “false.” Second, McDuff contends that he

is actually innocent of the crime--”that some one else did it”--and

therefore the Due Process Clause of the of the Fourteenth Amendment

prohibits an innocent man being put to death. Our review of the

re cord and the law demonstrates beyond the slightest doubt that

McDuff has no cognizable federal habeas claim. First, as matters

of fact, the record does not support either that McDuff was

actually innocent of murder, nor does it support that the hair

comparisons made by the State’s experts were false. And certainly,

the record does not show that the State knew that the hair

comparisons made by its experts were false, a fact that McDuff

admits. Second, as matters of law, H errera v. Collins

, 506 U.S.-3-

390 (1993) is completely dispositive of his actual innocence claim,

as he alleges no constitutional violation in the underlying State

criminal proceeding; and Blackmon v. Sco tt , 22 F.3d 560, 565,

appeal after remand Blackmon v. Johnson

, 145 F.3d 205 (5th Cir.

1998) is completely dispositive of his false testimony claim, as

McDuff admits that he can produce no evidence that the State

actually knew of the purported falsity of its expert testimony.

I

As similarly noted by the district court, the facts underlying

McDuff’s conviction are set out in the petition of the Texas Court

of Criminal Appeals:

Viewe d in the light most favorable to the verdict, the

evidence at trial established that around 4 :OO a.m. on

March 1, 1992, the victim, Melissa Ann Northrup was abducted from her work place, the Quick Pak #8 in Waco.

Richard Bannister testifi ed that on that same day

sometime between 3:30 a.m. and 4:00 a.m. he confronted

[McDuff] yards from the Quick Pack #8 in a motel parking

lot. [McDuff] was pushing his Ford Thunderbird which was

later found to be abandoned there.

Jerry Myers testifi ed that he saw [McDuff] driving the

victim’s vehicle North on Interstate 35 shortly after

4:00 a.m. with the victim in the passenger seat appearing

to be frightened. Shari Robinson testified that at

approximately 9:00 p.m. [McDuff] came to the door of her

Dallas County home and asked for food. The victim’s

abandoned vehicle was later found a short distance from

Robinson’s home.

Charles Linch, a hair comparison expert, testified that

a hair found on the victim’s body was identical to

[McDuff’s] hair. Steve Robinson, a Department of Public

Safety hair e xpert, testified that a hair found in the

victim’s car was similar to [McDuff’s] hair. Even Fred

Zain, [McDuff’s] hair comparison expert, admitted that

the ha irs found in the victim’s car would not exclude

[McDuff].-4-

Immediately prior to the instant offens e, [McDuff] had

attended Texas State Technical Institute (T.S.T.I) and

during that period, had worked at the Quick Pak #8 which

is located in McLennan County. In fact, [McDuff] had

received training from Aaron Northrup, the husband of the

decease d, while employed there. [McDuff] knew that the

Quick Pak #8 was very lax on security having no in-store

cameras or other security devices. Leonard Bradbury, a

Quick Pak supervisor, testified t hat over $250 was

missing from the cash register on the morning that

Northrup was discovered missing.

Mark Davis, a fellow T.S.T.I student, testified that on

an earlier occasion [McDuff] tried to enlist him to help

rob the Quick Pak #8 store. Lewis Bray, another T.S.T.I.

student, testified that on three different occasions,

[McDuff] told him that he was planning to rob the Quick

Pak #8. Bray and [McDuff] went so far as to drive by and

“case” the store. [McDuff] also told Bray that a good

way to dispose of a body was to slit the abdomen and

throw it into water. The deceased’s bound and partially

nude body was found floating in a water-filled gravel pit

not far from where her car was discovered. Part of her

lower torso was missing.

Alva Hank Worley testified that [McDuff] told h im that

there was a good-looking girl at a convenience store that

he was going to kidnap. Worley also testified to a

signature crime involving the abduction, sexual assault,

and murder of Collen Reed by [McDuff].

Mildred Hollins testified that hours before the abduction

of the victim [McDuff] was using cocaine, wanted a girl,

needed money, planned to rob in order to get some money,

and was willing to kill to get what he wanted. After the

abduction of the deceased, [McDuff] took flight to Kansas

City, Missouri where, at the time of his capture, he was living under an assumed name.

McDuff v. State , No. 71,700 at Slip op. 1-2.

During the guilt-innocence phase, the State offered the

testimony of Worley who testified, that in December of 1991, he and

McDuff abducted Collen Reed from a car wash in Austin, Texas, and

consequently took turns sexually assaulting her in a moving-5-

vehicle. Worley added that McDuff sexually assaulted Reed for

approximately forty-five minutes, until they reached Salado, Texas.

Worley further testified that while Reed was being repeatedly raped

by McDuff, and forced to perform heinous and vulgar sexual acts,

McDuff also beat Reed and burned her several times with a

cigarette. Worley continued that McDuff ultimately bound and

gagged Reed with shoestrings and pla ced her in the trunk of the

car. Worley testified that he would not give McDuff a shovel and

a pocket knife. He further testified that he was driven home and he

and McDuff parted ways.

During the punishment phase of the trial, the State presented

evidence of McDuff’s sixteen prior felony offenses and vari ous

members of law enforcement, including Deputy United States Marshal

Parnell McN amara and Assistant United States Attorney Ken Dies

testified that McDuff had an extreme propensity f or violence and

that he was generally dangerous.

Also during the punishment phase, the State produ ced

ad ditional evidence that in 1966, McDuff had brutally raped and

murdered one teen-age girl and murdered two teen-age boys. Roy

Dale Green testified that while he and McDuff drove around Fort

Worth, Texas, McDuff told him that “he was going to get him a

girl.” Green testified that as McDuff approached a parked car

carrying a gun and a stick, he was told to wait behind until McDuff

beckoned him. Minutes later, Green stated that McDuff told him

”they got a good look at me. I am going to have to kill them.” It-6-

was at this time, according to Green, that McDuff told him that the

two young boys and one girl w ere locked in the trunk of the car.

Green testified that McDuff murdered the young boys execution style

by firing several shots into the trun k of the car where the boys

had been locked. Green observed that after killing the young boys,

McDuff remained “cool calm and collected.” Green further testified

that after raping the young girl, McDuff used a broomstick to choke

her. Green, who held the young girl’s legs as McDuff choked her,

later turned McDuff in to the authorities.

The only evidence McDuff offered during the punishment phase

was the testimony of Wendell Lee Dickerson who testified that

McDuff was a person who would not be a future danger in prison as

he adapted well to prison life.

The jury convicted McDuff of the capital murder of Northrup

and in accordance with Texas law, McDuff was sentenced to death.

After the Texas Court of Criminal Appeals affirmed McDuff’s

sentence and conviction in an unpublished opinion. M cDuff v. State

of Texas , Slip op. No. 71,700 (Tex.Crim.App. 1997). McDuff filed

a petition for writ of certiorari to the United States Supreme

Court that was also denied. M cDuff v . State of Texas , 118 S.Ct.

702 (1998) . The Texas Court of Criminal Appeals subsequently

denied McDuff’s application for writ of habeas corpus. Then, under

28 U.S.C. § 2254 of the AEDPA, McDuff filed his first application

for habeas corpus relief in the United States District Court for

the Western District of Texas, setting out twelve claims for habeas-7-

relief. The State of Texas moved for summary judgment on McDuff’s

application and the district court granted the State’s motion on

O ctober 15, 1998. In response, McDuff filed a notice of appeal,

which the district court treated as an Application for Certificate

of Appealability and ultimately denied. Finally, on November 10,

1998, under 28 U.S.C. § 2253, M c Duff filed a Request for a

Certificate of Appealability with this court, which is the habeas

application before us today.

II

McDuff raises the following seven issues on appeal:

1. Is a defendant’s right to due process violated where his

conviction is based in substantial part on expert testimony which

lat er can be scientifically established to be false, where he

probably would not have been convicted without the false testimony?

2. Should an petitioner’s request for expert assistance be

granted, where such assistance is the only means an appellant has

to establish his claims, and there is a strong likelihood such

assistance may produce exculpatory information?

3. Can a petitioner’s actual innocence of the crime form the

basis of relief in federal court?

4. Did appellant adequately exhaust his due process claim

based on the use of false evidence, where he alleged he was

actually innocent and his execution would therefore constitute a

denial of due process?-8-

5. If appellant’s due process claim was not exhausted, did

the court err in disposing of it on t h e merits, instead of

remanding the entire case to state court for a decision?

6. Was petitioner’s right to due pr ocess, and to be free

from cruel and unusual punishment, violated by the failur e to

instruct the jury that petitioner could not be released on parole

until he had served at least forty years?

7. Was petitioner’s right to due process violated by the use

of an extraneous offense at the guilt-innocence portion of his

trial?

We will address each of McDuff’s conte ntions in turn to

determine whether the district court erred in refusing to award him

federal habeas relief.

(1)

Issue 1: Is a defendant’s right to due process violated where his

conviction is based in substant ial part on expert

testimony which later can be scientifically established

to be false, where he probably wo uld not have been

convicted without the false testimony?

McDuff contends that his execution would violate his rights to

due process because his conviction is based in substantial part on

expert testimony that might now be scientifically established to be

false. During McDuff’s capital murder trial, one of the State’s

experts, Charles Linch, testified that McDuff’s hair and a hair

found on the victim both had the same “extreme Negroid

characteristics”--a distinctive pigment clumping, or a heavy dense

pigmentation. The State offered a second hair comparison expert,-9-

Steve Robertson, who also testified that he personally found a hair

in the deceased’s car that had the same physical appearance as

McDuff’s hair.

McDuf f attacks the State’s expert hair comparison as being

inaccurate and unreliable . As support for his argument, McDuff

asserts that some of the hairs identified by Linch as being similar

to his were later DNA tested at the S.E.R.I. Laboratory in

California. Of the hairs tested, one hair fragment was determined

to have genetic markers different from McDuff’s, thereby excluding

him as a possible source of the hair. McDuff further contends that

advancements in scientific testing, specifically, Mitocondrial DNA

testing, now allow experts to test the hair fragments admitted into

evidence at his trial, which hairs could not have been previously

tested for his DNA. Thus, McDuff reasons that “there is as good as

chance as any that the hair comparisons conducted at his trial will

be wrong.” Given this possibility, McDuff concludes that his

rights under the due process clause have been violated by the

admission of false testimony at trial.

To establish a due process violation, McDuff must show that:

(1) the statements testified to by the State’s hair comparison

experts were actually false; (2) the State knew that the statements

were false; and (3) the statements were material. B lackmon v.

Scott , 22 F.3d 560, 565, appeal after remand Blackmon v. Johnson

,

145 F.3d 205 (5th Cir. 1998).-10-

McDuff’s due process argument fails as a matter of fact and

law. There is no evidence in the record that the State’s expert

testimony linking the hairs found on the deceased’s body and in her

car to McDuff was false. As previously noted, one of the State’s

experts testified that McDuff’s hair and a hair found on the victim

both had the same distinctive pigment clumping. Again, a second

expert testified that he discovered hair in the deceased’s vehicle

that had the same physical appearance as McDuff’s hai r. What is

most compelling, however, is that McDuff’s own expert could not

dispute the conclusions reached by either of the State’s experts.

McDuff’s expert also testified that McDuff’s hair had dense pigment

clumping similar to the hairs found on the deceased and in her car.

Furthermore, McDuff’s expert was never able to exclude him as the

possible source of the hairs found on the deceased and in her car.

But McDuff points out that one of the hairs identified by the

State’s expert as being similar to his was later determined to have

genetic markers different fro m McDuff’s. This is true but

unavailing because it is undisputed that the State did not rely on

this particular hair fragment to establish McDuff’s guilt. In

fact, the Sta te’s expert never testified at trial regarding the

fragments of hair determined by the DNA test not to have come from

McDuff. Moreover, one of the hair fragments tested for McDuff’s

DNA did test positive for McDuff’s genetic markers, albeit weakly.

Given these circumstances, and the extremely consistent testimony-11-

offered from experts on both sides, McDuff’s arguments today fail

to establish that the expert testimony offered at trial was false.

In any event, McDuff admits that he cannot establish that the

State knew that the expert testimony identifying him as the

possible source of the hairs found on the victim and in her car was

false when it offered the evidence at trial. This failure alone is

fatal to his due process claim. S mith v. Black

, 904 F.2d 950, 961

(5th Cir. 1990), vacated on other grounds, 503 U.S. 930 (1992)

(citing Mooney v. Holohan

, 294 U.S. 103, 110, 112 (1935) (per

curiam)) (“[t]his circuit has long abided by the standard that the

prosecution must have knowingly used the testimony to obtain a

convi c tion for use of perjured testimony to constitute

constitutional error”); Skipper v. Wainwright , 598 F.2d 425, 427

(5th Cir.) (per curiam), cert. denied

, 444 U.S. 974 (1979) (citing

Giglio v. United States

, 405 U.S. 150 (1972)). McDuff’s request of

COA on this issue is therefore denied.

(2)

Issue 2: Should a pe titioner’s request for expert assistance be

granted, where such assistance is the only means a

petitioner has to establish his c laims, and there is a

strong likelihood such assistance may produce exculpatory

information?

McDuff next contends that the state court should have granted

his request for expert assistance because suc h assistance is the

only means he has to establish his claims, and there is a strong

likelihood that such assistance may produce exculpatory

information. Without the subsequent expert testing, McDuff-12-

contends that the accuracy of the hair comparison expert testimony

introduced at his trial will never be known.

To the extent that McDuff requests expert assistance to refute

the accuracy of the expert testimony as well as to discover other

exculpatory evidence, he fails to make a substantial showing of a

denial of a constitutional right and thus raises no cognizable

constitutional claim warranting federal habeas relief

. See

Drinkard v. Johnson

, 97 F.3d 751, 770 (5th Cir. 1996), cert.

denied

, __ U.S.__, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997). In

short, McDuff raises no constitutional error in the state court

trial.

(3)

Issue 3: Can a petitioner’s actual innocence of the crime form the

basis of relief in federal court?

McDuff’s third argument is that his actual innocence of the

crime should form the basis of habeas relief in federal court.

McDuff concedes that generally the discovery of new evidence will

not establish a constitutional violation. He nonetheless argues

that the Fourteenth Amendment’s due process clause and the Eighth

Amendment warrant a different result when p art of the State’s

testimony is established to be false. We need go no further in

addressing this argument than to reiterate our earlier conclusion

that the expert testimony offered at McDuff’s trial was not in fact

false.-13-

Nevertheless, it has long been the rule that “claims of actual

innocence based on newly discovered evidence have never been held

to state a ground for federal habeas relief absent an independent

constitutional violation occurring in the underlying state criminal

proceeding.” L ucas v. Johnson

, 132 F.3d 1069, 1074 (5th Cir. 1998)

(citing Herrera

, 506 U.S. at 400). In pressing this point, McDuff

has not argued a constitutional violation in the unde rlying

criminal proceeding. Therefore, McDuff’s actual innocence claim is

virtually identical to th e one made in H errera and thus does not

present grounds for habeas relief. I d. ; Herrera

, 506 U.S. at

398-400.

McDuff, nonetheless, attempts to distinguish his argument for

a COA on the grounds that his claim of actual innocence--that one

Charles Gatlin committed the murder and not he--is not based on new

evidence, but on evidence that he acknowledges he was aware of at

trial but chose to reject for tactical reasons at that time.

McDuff reasons that if, under the new method of DNA testing, the

hairs can be identified as not coming from him, then he has a much

stronger claim of innocence. McDuff therefore concludes that it is

not merely the evidence concerning Gatlin, but possible additional

evidence resulting from the DNA testing of the hairs found in the

victim’s car and on her body that may support his claim.

We find this argument unavailing. “Even if a claim of actual

innoc e nce is cognizable under federal habeas corpus, [without

McDuff showing an underlying constitutional violation in the trial-14-

court proceedings below,] the accumulation of evidence that tracks

and corroborates the evidence presented at trial and that largely

w as available at the time of trial

, d oes not qualify to meet the

extraordinarily high threshold as newly discovered evidence

demonstrating actual innocence that is necessary to suggest a

federal constitutional right arising from this Texas conviction.”

Lucas , 132 F.3d at 1076 n.3 (emphasis added).

Finally, to the extent that McDuff argues that the due process

clause and the Eighth Amendment should be extended to accommodate

his actual innocence claim, this request is barred as an improper

request for recognition of a new constitutional rule on collateral

review. T eague v. Lane

, 489 U.S. at 288, 300-311 (1989).

Consequently, McDuff has failed t o make any showing that his

claimed actual innocence justifies federal intervention.

(4)

Issue 4: Did appellant adequately ex haust his due process claim

based on the use of false evidence, where he alleged he

was actually innocent and his execution would therefore

constitute a denial of due process?

The district court concluded that McDuff’s claim in this

regard is procedurally barred. We have addressed the substance of

McDuff’s due process claim--that the State’s expert testimony

identifying him as the possible source of the hair fragments found

on the victim and in her car was false --and found it entirely

meritless. As discussed earlier, there exists no proof in the

record to support McDuff’s claim that the expert testimony was-15-

ind eed false. Second, McDuff concedes that he cannot establish

that the State knew that the expert testimony offered at his trial

was false. Because he is unable to make these requisite showings,

McDuff’s due process claim fails as a matter of law. G iglio v.

United States

, 405 U.S. 150, 153-54 (1963); Blackmon

, 22 F.3d at

565. Even more telling, McDuff admits that DNA testing

establishing that the hair did not come from him would not, in

fact, establish his innocence. Given these circumstances, McDuff

has failed to demonstrate the denial of a federal constitutional

right necessary to entitle him to a certificate of appealability.

McDuff’s argument on appeal that he exhausted his state remedies is

therefore mooted.

(5)

Issue 5: If appellant’s due process claim was not exhausted, did

the court err in disposing of it on the merits, instead

of remanding the entire case to state court for a

decision?

Alternatively, McDuff asserts that ev en if his due process

claim was not exhausted, the district court erred in disposing of

the claim on the merits. McDuff argues that under Rose v. Lundy

,

455 U.S. 509 (1982), the proper course for the district court was

to remand the entire case to the state court for a decision.

This argument is meritless. An application for a writ of

habeas corpus may be denied on the merits, notwithstanding the

failure of the applicant to exhaust the remedies available in the

courts of the State. 28 U.S.C. § 2254 (b)(2).-16- (6)

Issue 6: Was petitioner’s right to due process, and to be free

from cruel and unusual punishment , violated by the

failure to instruct the jury that the petitioner could

not be released on parole until he had served at least

forty years?

McDuff next contends that the trial court improperly denied

his request for a jury instruction that, under Texas law, a

defendant receiving a life sentence for capital murder was required

to serve at least forty years before becoming eligible for parole.

The trial court was not required to instruct the jury as

McDuff requested. The Federal Constitution neither requires the

state of Texas to give jury instructions regarding parole

eligibility, nor does it prevent it from doing so. S ee California

v. Ramos

, 463 U.S. 992 (1983). As such, Texas has traditionally

kept information about a capital defendant's parole ineligibility

from the sentencing jury.

We are aware that in Simmons v. South Carolina

, 512 U.S. 154,

157 (1994), the Supreme Court held that due process requires a jury

to be informed that a defendant is ineligible for parole when

future dangerousness is at issue in the penalty phase of a capital

murder trial, and where state law altog ether prohibits the

defendant’s release on parole. Texas, however, does not have a

life-without-parole sentencing alternative to capital punishment.

Moreover, the Simmons Court makes clear that its holding does not

invalidate Texas’ prohibition against informing jurie s about the

parole implications of a life sentence in a capital case. S ee-17-

Simmons

, 512 U.S. at 168 (“in a state in which parole is available,

how the jury’s knowledge of parole eligibility will affect the

decision whether or not to impose the death penalty is speculative,

and we shall not lightly second-guess a decision whether or not to

inform the jury in information regarding parole”). Consequently,

McDuff cannot demonstrate that his rights under the due process

clause have been abridged by the trial court’s refusal to inform

the jury that he must serve at least forty calendar y ears before

becoming eligible for parole.

S econd, because McDuff‘s Eighth Amendment argument does no t

turn on the admission or exclusion of any categories of potentially

relevant mitigating evidence, i.e., evidence of his character and

rec ord, and the circumstances of the crime, the trial court’s

refusal to give the requested parole instruction does not violate

the Eighth Amendment. S ee Smith v. State

, 898 S. W.2d 838, 853

(Tex.Crim.App. 1995)(state’s parole laws are not in any way part of

c apital defendant’s character, record, or circumstances of the

offense).

(7)

Issue 7: Was the petitioner’s right to due process violated by the

use of an extraneous offens e at the guilt-innocence

portion of his trial?

Finally, McDuff argues that his due pr ocess rights were

violated by the use of an extraneous offense at the guilt-innocence

portion of his trial. Relying on the accomplice-witness rule under

Texas law , McDuff contends that it was error to allow Alva Hank-18-

Worley to testify regarding McDuf f’s murder of Colleen Reed.

McDuff reasons that the State failed to prove he committed the

murder of Colleen Reed beyond a reasonable doubt because Worley was

an accomplice to Reed’s murder and his testimony alone could not

form the basis for a conviction against him.

Even if the trial court’s admission of Worley’s te stimony

violated Texas’ accomplice-witness rule, the violation nonetheless

provides no basis for federal habeas relief. The accomplicewitness rule is a state procedural rule that has no independent

constitutional basis. B rown v. Collins

, 937 F.2d 175, 182 n.12

(5th Cir. 1991). Federal habeas relief is not available to correct

errors that are based solely upon state constitutional, statutory

or procedural law issues. Estelle v. McGuire , 502 U.S. 62, 67-68

(1991).

CONCLUSION

We therefore conclude that Kenneth Allen McDuff has failed to

make a substantial showing of a denial of a constitutional right

that would entitle him to federal habeas relief. His application

for a certificate of appeal is hereby DENIED and his request for a

stay of execution is therefore DENIED.

CERTIFICATE OF APPEALABILITY DENIED;

MOTION TO STAY EXECUTION DENIED.