* Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Rule

47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10448

CLINTON SHELTON,

Petitioner-Appellant,

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 3:05-cv-763

Before PRADO, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

Petitioner Clinton Shelton appeals the district court’s denial of his 28

U.S.C. § 2254 habeas corpus petition. We affirm. 

I. BACKGROUND

Petitioner Clinton Shelton (“Shelton”), his wife Catherine Shelton, Marissa

Hierro and her husband Michael Hierro were at some point involved in a

business enterprise together. The Sheltons and the Hierros eventually had a

falling out over business matters. On December 20, 1999, the Hierros were

ambushed outside their home in Rowlett, Texas; Michael Hierro was killed and

Marissa was shot and seriously injured. Lying on the sidewalk bleeding,

United States Court of Appeals

Fifth Circuit

F I L E D

September 29, 2008

Charles R. Fulbruge III

Clerk
06-10448

2

Marissa Hierro, playing dead, heard two individuals arguing over whether to

shoot her again to ensure her death. Hierro identified the male voice—the voice

expressing a reluctance to fire again—as that of Clinton Shelton, and the other

voice as that of his wife, Catherine. Marissa Hierro also described for

authorities, and for the jury at Shelton’s trial, a mask and a pair of gloves the

shooter allegedly donned.

Located near the Hierros’ home at the time of the shooting was a portable

toilet (“the toilet”) used by a construction company performing work nearby and

serviced by Browning Ferris, Inc. (BFI). Upon arriving at the scene to

investigate the shooting, a Rowlett police officer discovered in that toilet a pair

of rubber gloves and a mask fashioned from pantyhose. Shelton’s DNA was

found on the mask, a fact he has never disputed. 

Shelton was prosecuted in the 195th Judicial District Court in Dallas

County, Texas for murder and aggravated assault. Unsurprisingly, one of the

most incriminating pieces of evidence against Shelton was the mask containing

his DNA. Rather than denying that the mask and gloves were his, Shelton

claimed that he deposited the items in the toilet the day before the shooting,

December 19th, for reasons unrelated to the shooting. Specifically, Shelton

claimed that in December 1999 he was contemplating divorce; he therefore

anticipated the need to subpoena Marissa Hierro to testify in his favor at divorce

proceedings. Thus, according to Shelton, he drove to the Hierro residence on

December 19th to confirm Marissa’s address in the event a subpoena became

necessary. Shelton claims he wore the mask simply so that he could monitor the

Hierro property incognito. 

Thus, critical to Shelton’s defense was the date on which he placed the

gloves and mask in the toilet. If the State could prove that he did so on the day

of the murder, rather than on the previous day, it would deflate Shelton’s

defense. To that end, the State presented the testimony of BFI employee

Charles Lakes (“Lakes”), who swore that he had cleaned the toilet on the
06-10448

3

morning of the 20th, the implication being that any items discovered therein

later that day must have been deposited that day. Thus ensued a controversy

at trial over whether Lakes did indeed clean the toilet on the 20th as he claimed.

In attempting to prove that he did not, Shelton’s counsel sought the toilet’s

service records, most of which he was unable to obtain. A jury found Shelton

guilty of murder and aggravated assault on November 16, 2000. The trial court

sentenced Shelton to life in prison. Shelton appealed, and his sentence and

conviction were affirmed. 

Catherine Shelton was never prosecuted for her alleged participation in

the shooting. However, after Shelton’s conviction, Marissa Hierro filed in the

192nd Judicial District Court in Dallas County, Texas a wrongful death lawsuit

against Catherine Shelton. Catherine countersued, asserting a claim of libel

against Hierro based on Hierro’s public allegation that Catherine Shelton

participated in the shooting. During discovery, additional evidence related to

the shooting surfaced, but the lawsuit never made it to trial. Hierro eventually

abandoned the suit, and Catherine Shelton was awarded a judgment on her

counterclaim for libel.

After judgment was entered in the civil suit, Catherine Shelton’s attorney,

James Murphy, sent a letter to Shelton dated December 19, 2003. In that letter,

Murphy explained his belief that some of the evidence that surfaced in the civil

suit supported the defense theory Shelton presented at his criminal trial;

Murphy also explained his beliefthatthe prosecution wrongfully withheld some

of that evidence. On February 4, 2004, over six weeks after receiving Murphy’s

letter, Shelton applied for a writ of habeas corpus in state court. On May 24,

2004, over six weeks after the state district court entered its findings of fact and

conclusions of law recommending thattheTexas Court of Criminal Appeals deny

his petition on the merits, Shelton filed a motion with the Texas Court of

Criminal Appeals in which he suggested the existence of newly discovered
06-10448

4

evidence and its potentially exculpatory nature. On January 19, 2005, the Texas

Court of Criminal Appeals denied Shelton’s petition. 

On March 17, 2005, Shelton filed his § 2254 habeas corpus petition in

federal district courtin which he asserted numerous claims, including ineffective

assistance of counsel and prosecutorial misconduct. Shelton also filed in the

district court a motion to expand the record, arguing that further discovery

would reveal evidence demonstrating that the government at trial knowingly

offered perjured testimony,thatit wrongfully withheld exculpatory evidence and

that he received ineffective assistance of counsel. Shelton also argued that the

state court unfairly refused to expand the record and to permit further discovery.

On February 9, 2006, the magistrate judge to whom the district court referred

the case recommended thatthe district court deny Shelton’s procedural motions

as well as his petition on the merits. The district court adopted the magistrate

judge’s conclusions and recommendations and entered a final judgment against

Shelton on March 7, 2006.

Although the district court refused to do so, this court, on August 8, 2007,

granted a limited certificate of appealability (COA) on three issues: (1) whether

the district court wrongfully denied Shelton’s requests for further discovery, for

an evidentiary hearing, and to expand the record; (2) whether his trial counsel,

John Young, provided ineffective assistance of counsel; and (3) whether the

government committed prosecutorial misconduct by either inducing its witnesses

to commit perjury attrial or by wrongfully concealing exculpatory evidence from

the defense.

II. DISCUSSION

Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective

Death Penalty Act (AEDPA), we defer to state court merits determinations

unless those determinations: (1) are “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
06-10448

5

unreasonable determination ofthe facts in light of the evidence presented in the

State court proceeding.” With regard to a district court’s application of this

standard, “we review the district court’s findings of fact for clear error and its

conclusions of law de novo, applying the same standards to the state court’s

decision as did the district court.” Horn v. Quarterman, 508 F.3d 306, 311 (5th

Cir. 2007) (quoting Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004)).

A. Procedural Motions

Shelton argues that by the time he filed his state habeas petition, evidence

had surfaced evincing the prosecution’s knowing provision of perjured testimony

and its wrongful retention of exculpatory evidence. In the state district court,

Shelton sought discovery and expansion ofthe record based on this evidence, but

only after that court issued its findings of fact and conclusions of law; for some

reason, Shelton failed to specifically invoke the new evidence in his state habeas

petition. In federal district court, Shelton argued that he was not allowed to

develop his claims fully in state court, and therefore the district court should

have, pursuant to rules 6, 7 and 8 of the Rules Governing Section 2254 Cases,

held an evidentiary hearing and allowed Shelton to discover, and expand the

record with, the allegedly exculpatory evidence. 

The district court referred Shelton’s case to the magistrate judge, who

recommended denying these motions based on case law purportedly dictating

that federal courts, in reviewing a state court’s merits determinations, may

consider only the evidence presented to the state court. We review the district

court’s order with respect to each of Shelton’s procedural motions. 

1. Motion for Leave to Conduct Discovery

In his Motion for Leave—and, read broadly, his primary habeas brief—

Shelton sought discovery of evidence relating to his claims that: (1) the

government induced Marissa Hierro to lie on the stand concerning her business

dealings with the Sheltons prior to the shooting, a lie which allegedly served to

reinforce the government’s characterization of Shelton’s motive; (2) the
06-10448

6

prosecution failed to disclose to the defense exculpatory BFI toilet records, which

allegedly show that, contrary to the testimony of BFI employee Lakes, the toilet

was not cleaned on the morning of December 20, 1999; (3) the prosecution was

in possession of, and failed to disclose to the defense, “highly exculpatory . . .

telephone records which unequivocally show that Catherine Shelton was

nowhere near the Hierro residence when Michael Hierro was shot”; (4) the

government failed to disclose Marissa Hierro’s drawing of the perpetrator’s mask

purportedly provided to police shortly after the shooting, a drawing that

allegedly depicted a mask appreciably different than the one found by police in

the toilet; and (5) Marissa Hierro committed perjury when she placed Catherine

Shelton at the scene of the shooting. 

Rule 6(a) of the Rules Governing Section 2254 Cases provides that “[a]

judge may, for good cause, authorize a party to conduct discovery under the

Federal Rules of Civil Procedure and may limit the extent of discovery.” In

Bracy v. Gramley, 520 U.S. 899 (1997), the Supreme Court expounded the “just

cause” clause of Rule 6(a):

[W]here specific allegations before the court show reason to believe

that the petitioner may, if the facts are fully developed, be able to

demonstrate that he is . . . entitled to relief, it is the duty of the

courts to provide the necessary facilities and procedures for an

adequate inquiry.

Id. at 908-09 (citation and internal quotation marks omitted). In the wake of

Bracy, this court has stated that “[g]ood cause may be found when a petition for

habeas corpus establishes a prima facie claim for relief.” Murphy v. Johnson,

205 F.3d 809, 814 (5th Cir. 2000) (citations and internal quotation marks

omitted). However, “a petitioner’s factual allegations must be specific, as

opposed to merely speculative or conclusory, to justify discovery under Rule 6.”

Id. Accordingly, in order to reverse the district court’s ruling on Shelton’s

motion for leave to conduct discovery, we must at least conclude that (1) Shelton

stated a prima facie case for relief based on the evidence sought to be discovered
06-10448

7

and (2) that his prima facie case was premised on specific allegations rather

than speculative and bald accusations. The court must then find that the

district court abused its discretion in denying Shelton further discovery. See

Clark v. Johnson, 202 F.3d 760, 765-66 (5th Cir. 2000) (“[T]he district court’s

decision regarding the availability of discovery is also committed to the sound

discretion of the district court, and is reviewed under the abuse of discretion

standard.”).

Under Brady v. Maryland, 373 U.S. 83, 87 (1963), “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.” To

prove a Brady violation, Shelton must show that: “(1) the prosecution suppressed

evidence; (2) the evidence was favorable to the defense; and (3) the evidence was

material to either guilt or punishment.” Murphy, 205 F.3d at 814 n.2. 

In seeking further discovery on the issue of Marissa Hierro’s credibility,

Shelton argued:

[T]he credibility of Marissa Hierro is at issue. Ms. Hierro has been

proven to be a liar as to Catherine Shelton’s participation in the

shooting death of Michael Hierro. See Motion to Expand Record and

Appendix thereto (Final Judgment). It has been shown by

Petitioner[] that Marissa Hierro perjured herself during trial as to

her business activities in th[e] months leading up to the shooting,

and . . . that the prosecution withheld such information to support

Marissa Hierro’s version of the “motive” for the shooting. 

Shelton does not indicate what he means by Hierro’s “business activities,” or how

Hierro’s testimony regarding her “business activities” was untruthful. Shelton

simply failed to provide the district court with a reason to believe that further

discovery would yield evidence supporting this allegation. 

Shelton also refers in passing to the final judgment of the 192nd District

Court, wherein that court deemed false Hierro’s allegation that Catherine

Shelton was present atthe scene ofthe shooting. Shelton appears to believe that

this is evidence of actual perjury. It is not. After Catherine Shelton filed her
06-10448

1 As discussed, infra, the BFI route sheets are not facially exculpatory.

8

libel counterclaim against Hierro, Hierro abandoned the lawsuit, and Catherine

Shelton took a judgment on her counterclaim. This amounted to a post-answer

default on the part of Hierro. Catherine Shelton still bore the burden of proving

the elements of libel at the ensuing trial, but because Hierro did not appear for

the trial, only Catherine Shelton presented evidence. The civil trial court did not

at any time rule that Hierro committed perjury at Shelton’s criminaltrial. Thus,

Shelton has not shown that further discovery would uncover evidence that

Marissa Hierro actually perjured herself in implicating Catherine Shelton in the

shooting at the criminal trial. 

Shelton was not entitled to further discovery regarding his claim that the

government withheld allegedly exculpatory BFI records.1 To satisfy Brady’s

materiality prong, Shelton is required to show that there “exists a ‘reasonable

probability’ that had [the evidence in question] been disclosed the result at trial

would have been different.” Dickson v. Quarterman, 462 F.3d 470, 477 (5th Cir.

2006). Shelton argues that the prosecution, at the time of his trial, was in

possession of BFI records illustrating that the toilet was not cleaned on

December 20, 1999, and that the government offered perjured testimony,

through Charles Lakes, to this effect. 

Once again, Shelton fails to state a prima facie Brady claim. Even if Lakes

did not clean the toilet on the morning of the murder, it does not follow that the

jury would have believed Shelton’s claim that he placed the mask and gloves in

the toilet on the night of the 19th. Shelton admitted at trial that he was at the

Hierro residence on or before the night of the shooting. He admits that the mask

and gloves were his. He admits that he placed the mask and gloves in the toilet

in which authorities found them. Further, Marissa Hierro testified that the

shooter wore a mask similar (if not identical) to the mask Shelton admits was

his. For Shelton’s claim to be believed, the jury would have had to accept that

the shooter coincidentally wore a similar pair of gloves and mask the very next
06-10448

2 With one exception, all of the phone records make clear that the phone to which the

each record corresponds is a cellular phone. The one exception is an MCI Worldcom record,

which gives no indication ofthe type of phone corresponding to the account. Even if we assume

this record corresponds to a non-cellular phone, it does nothing to help Shelton’s argument

because the record neither reveals the name of the account holder nor confirms the location of

the phone when certain listed calls were made. 

9

day. In short, given the strength of the evidence against Shelton, we cannot say

that the state court’s application of the Brady materiality prong was

unreasonable. Thus, Shelton failed to state a prima facie Brady claim in seeking

further discovery. 

Shelton was not entitled to discovery regarding his Brady claim that the

government wrongfully retained exculpatory phone records. Shelton avers that

the prosecution, at the time of trial, was in possession of phone records which

“unequivocally show that Catherine Shelton was nowhere near the Hierro

residence when Michael Hierro was shot,” evidence which would have shown

Marissa Hierro to be dishonest at trial. Shelton provided to the district court

what appear to be phone records itemizing various calls placed from Catherine

Shelton’s cellular phone.2 Highlighted are entries for various calls made from

Catherine’s phone on the night of the murder. Shelton argued in the district

court that these records show that Catherine Shelton was calling and speaking

with her mother “at the precise time of the murder of Michael Hierro.” Shelton

argues that he could have used these records to impeach the credibility of

Marissa Hierro, who placed Catherine Shelton at the scene of the shooting.

The prosecution’s alleged failure to produce these records would not give

rise to a Brady violation. First, the phone records do not suggest that Catherine

was far from the Hierro residence on the night of the shooting, as they reflect

cellular phone calls, not calls made from Catherine Shelton’s residence.

Catherine could have made a call on her phone shortly before pulling up to the

Hierros’ driveway. Second, nothing in the record indicates the “precise time” the

shooting took place, a fact that severely reduces, if not forecloses, the phone
06-10448

10

records’ exculpatory value. The shooting easily could have taken place during

the time windows in which Catherine’s phone was not in use.

Shelton also argues that he was entitled to discovery regarding his claim

that the prosecution withheld a drawing of the perpetrator’s mask allegedly

produced by Marissa Hierro and provided to law enforcement shortly after the

shooting. In his habeas petition, Shelton asserted that the “mask drawing

contradicts the description of the mask found in the [toilet] by police, falsely

indicated to be [sic] worn by the assailant” on the night ofthe murder. According

to Shelton, the mask he wore the night before the murder had only one round

hole, but Marissa Hierro testified that the assailant’s mask bore two eye holes

and no mouth hole. 

Testimony was presented at trial to the effect that the mask found in the

toilet had one large hole in the front. Nevertheless, Marissa Hierro testified at

trial that the perpetrator wore a mask with two eye holes. The jury was

therefore made aware of the contradiction between the mask descriptions; it

nevertheless returned a verdict of guilty. As such, we cannot say that the

district court erred in concluding that Shelton’s allegations failed to state a

prima facie claim regarding Brady’s materiality prong. 

Further, in his habeas brief, Shelton asserted unequivocally that the

drawing depicts a mask with two holes. In his appellate brief, however, he

declares “there is no telling what the drawing of the mask immediately after the

shooting would reveal, but this evidence is critical to the credibility, or lack

thereof, of Marissa Hierro.” If Shelton does not claim certainty as to what the

drawing of the mask reflects, he certainly cannot state a prima facie case that

the drawing is Brady material because he cannot claim it is exculpatory. In

other words, he cannot show that the drawing is “critical to” Marissa Hierro’s

credibility if he does not even know what the drawing reveals, or provide any

basis for believing that the drawing somehow undermines Hierro’s credibility.
06-10448

11

Shelton sought discovery of evidence demonstrating that Marissa Hierro

perjured herself at Shelton’s trial in placing Catherine Shelton at the scene of

the shooting. Shelton provides no basis on which to conclude that further

discovery would yield such evidence. He points only to the aforementioned final

judgment of the 192nd District Court, wherein that court found Marissa Hierro

in default as to Catherine Shelton’s libel claim. For reasons already stated, this

document fails to give rise to a suspicion that further discovery would uncover

evidence that Hierro was dishonest in implicating Catherine Shelton. 

After exhaustively reviewing Shelton’s district court filings and the

exhibits to which Shelton points in arguing that the district court wrongfully

denied him further discovery, we conclude that Shelton has either failed to

provide more than bald allegations that a given avenue of discovery would yield

exculpatory evidence, or has failed state a prima facie case that discovery of the

respective evidence would demonstrate the unreasonableness ofthe state court’s

Brady ruling. Accordingly, the district court did not err in denying Shelton

further discovery.

2. Motion to Expand the Record

Beyond seeking discovery of new evidence, Shelton also sought to expand

the federal habeas record to include exhibits already in his possession. The

State resisted, arguing thatthe district court should adjudicate Shelton’s claims

based on the evidence presented to the state court. The magistrate judge agreed

and recommended that the district court deny Shelton’s motion to expand the

record based on case law purportedly dictating that federal habeas courts are to

examine a state court’s merits determinations based on the record as it stood

before the state court.

Rule 7 ofthe Rules Governing Section 2254 Cases provides “If the petition

is not dismissed, the judge may direct the parties to expand the record by

submitting additional materials relating to the petition.” In interpreting the

reach of Rule 7, the magistrate focused primarily on case law indicating that
06-10448

12

Rule 7 does not create unlimited discretion for district courts to expand habeas

records. The magistrate concluded that before a district court may exercise its

discretion under Rule 7 it must first find that the petitioner has satisfied the

requirements of § 2254(e). That provision, which establishes the prerequisites

for an evidentiary hearing, provides:

(e) (1) [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.

(2) If the applicant has failed to develop the factual basis of a claim

in State court proceedings, the court shall not hold an evidentiary

hearing on the claim unless the applicant shows that– 

(A) the claim relies on–

(i) a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that

was previously unavailable; or

(ii) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and

(B) the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for

constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense.

The magistrate concluded that paragraph (e)(2)(A)(i) was inapplicable, which is

correct; Shelton does not rely on a new rule of constitutional law. Thus, the

magistrate evaluated Shelton’s motion under (e)(2)(A)(ii), and concluded that he

did not exercise due diligence in attempting to gain the allegedly exculpatory

evidence he claims would, if included in the record, entitle him to relief. 

Section 2254(e)(2), relating to “evidentiary hearings,” also governs when

a district court may consider evidence not presented to the state courts. See

Bradshaw v. Richey, 546 U.S. 74, 79 (2005); Mark v. Ault, 498 F.3d 775, 788 (8th

Cir. 2007). Thus, we review the district court’s application of that provision. 
06-10448

13

In applying § 2254(e)(2), the initial inquiry is whether Shelton “failed to

develop the factual basis of” his claims: 

The question is not whether the facts [the petitioner seeks to add to

the record] could have been discovered but instead whether the

prisoner was diligent in his efforts. The purpose of the fault

component of “failed” is to ensure the prisoner undertakes his own

diligent search for evidence. Diligence for purposes of the opening

clause depends upon whether the prisoner made a reasonable

attempt, in light of the information available at the time, to

investigate and pursue claims in state court; it does not depend . . .

upon whether those efforts could have been successful.

Williams v. Taylor, 529 U.S. 420, 435 (2000). The district court’s conclusion that

Shelton was not diligent is a finding of fact reviewed for clear error; the district

court did not clearly err. After a review of the record, we find that Shelton was

not diligent in developing the factual basis of his claims. Most of the evidence

Shelton sought to include in the federal habeas record was brought to Shelton’s

attention via a letter to Shelton from Catherine Shelton’s attorney, James

Murphy, in which Murphy explained his belief that certain evidence that

surfaced during the civil suit between Catherine Shelton and Marissa Hierro

would have favored Shelton at trial. Murphy’s letter is dated December 11,

2003. Shelton filed his state petition on February 4, 2004. Thus, the factual

predicate Shelton now seeks to lay for his claims was available before he filed his

state petition. Nevertheless, Shelton failed in his state petition to allege the

existence of evidence he now invokes. Nor did Shelton, before the state court

evaluated his claims, apprise that court of his need to discover additional

evidence not included in the habeas record. It was not until May 24, 2004, after

the state district court issued its findings of fact and conclusions of law, that

Shelton asserted in state court that the deposition testimony of a BFI employee
06-10448

3

In fact, in its memorandum recommending that the district court deny Shelton’s

petition, the magistrate judge indicated his suspicion that Shelton intentionally withheld

evidence from the state court that heard Shelton’s habeas claims. Although we take no

position on the issue of whether Shelton intentionally withheld evidence from the state district

court, it is noteworthy that Murphy, in his December 19th letter, attempted to dissuade

Shelton from filing a “dry writ” in state court without taking more time to develop his case.

4 Several days after Shelton filed his state habeas petition, the state court issued an

Order Designating Issues, wherein the court appointed attorney Fred McDaniel as special

master “to resolve the issues and prepare findings of fact and conclusions of law for the court.”

The court noted that “[t]he issues may be resolved by affidavits, depositions, interrogatories,

or by hearings, as deemed necessary” by McDaniel. To help resolve Shelton’s ineffective

assistance claims, McDaniel next obtained an affidavit from John Young, in which Young

responded to Shelton’s claims that his representation of Shelton was ineffective. It appears

the state court relied heavily on Young’s affidavit in rejecting Shelton’s ineffective assistance

claims. Further, as far as we can tell, the state court did not specifically offer Shelton the

opportunity to file a response to Young’s affidavit. 

14

supported his defense theory, and that he needed additional discovery to fully

develop his case.3

As such, the analysis turns to whether: (1) Shelton’s claims rely on “a

factual predicate that could not have been previously discovered through the

exercise of due diligence” and (2) “the facts underlying the claim would be

sufficient to establish by clear and convincing evidence that but for

constitutional error, no reasonable factfinder would have found the applicant

guilty ofthe underlying offense.” § 2254(e)(2). First, Shelton not only could have,

but did discover the factual predicate for his claims before the state court

addressed the merits of those claims; he admits that the evidence in question

came to his attention almost two months before he filed his state habeas

petition. Second, for reasons explained above, none of the evidence Shelton

sought to add to the federal habeas record is so favorable to Shelton’s defense

theory such that, had that evidence been admitted at trial, a reasonable jury

would have been required to acquit. Shelton cannot satisfy § 2254(e)(2)(A)(ii),

and the district court did not err in refusing to expand the habeas record.

3. Motion for an Evidentiary Hearing

Shelton argues thatthe district court erred in denying him an evidentiary

hearing under Rule 6 ofthe Rules Governing Section 2254 Cases.4 What Shelton
06-10448

In summarizing the procedural history of his case, Shelton complains ofthe process the

state district court employed to adjudicate his claims. We do not deem this issue as subsumed

into the greater question of whether the federal district court should have granted Shelton an

evidentiary hearing. The panel that granted Shelton a COA did so only with regard to whether

Shelton was entitled to a hearing under Rule 8 of the Rules Governing Section 2254 Cases; it

expressly refused Shelton a COA on the issues of whether “§ 2254(d) is applicable when a full

and fair hearing is not provided by the state habeas court,” and whether “the state habeas

court erred in considering Young’s affidavit.” Thus, while the state court’s use of a special

master in the above manner might raise questions, we do not address those questions at this

time as they are not before us.

15

overlooks, however, is that Rule 8, not Rule 6, governed his requestfor a hearing

in the court below. That rule provides that “[i]f the petition is not dismissed, the

judge must review the answer, any transcripts and records of state-court

proceedings, and any materials submitted under Rule 7 to determine whether

an evidentiary hearing is warranted.”

According to the Advisory Committee Note to Rule 8(a), the provision “is

not intended to supersede the restrictions on evidentiary hearings contained in

28 U.S.C. § 2254(e)(2).” Thus, under the AEDPA, “requests for an evidentiary

hearing are to be evaluated under the provisions of 28 U.S.C. § 2254(e)(2).”

Murphy, 205 F.3d at 815. It follows that for the same reason the district court

did not err in refusing to expand the record—that is, because Shelton cannot

satisfy § 2254(e)(2)—the district court did not err in denying his motion for an

evidentiary hearing. 

B. Ineffective Assistance of Counsel

This court also certified Shelton’s appeal of the district court’s rejection of

his ineffective assistance of counsel claims, but only insofar as Shelton

complained of his trial counsel John Young. We will not disturb a state court’s

adjudication of an ineffective assistance claim unless it represents an

“unreasonable application of[] clearly established federal law.” § 2254(d)(1).

That the Sixth Amendment guarantees the effective assistance of counsel is

clearly established federal law. Strickland v. Washington, 466 U.S. 668, 684-85

(1984). 
06-10448

5 Shelton for the first time on appeal advances several additional ineffective assistance

arguments. Shelton waived these arguments by not raising them below, see Little v. Liquid

Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir. 1994), so we will not address them. 

16

A party claiming ineffective assistance must show that (1) trial counsel’s

performance fell below an objective standard of reasonableness and (2) he

suffered prejudice as a result. Id. at 687-88. To prove prejudice, a petitioner

must demonstrate “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. at 694. 

Shelton’s claims of ineffective assistance before the federal habeas court

can be distilled down to four based on Young’s failure to: (1) “insist on obtaining”

the aforementioned BFI route sheets, which allegedly show that the toilet was

not cleaned on the morning of December 20, 1999; (2) “pursue formal rulings

from the court on pre-trial matters, including discovery motions”; (3) argue

ineffective assistance in moving for a new trial; and (4) “properly challenge and

object to the [S]tates’ introduction of perjury through” its witnesses.5

Ofthe four ineffective assistance arguments Shelton advances,that based

on the BFI route sheets is his strongest; it is nevertheless unavailing. Shelton

argued below that he suffered ineffective assistance because Young failed to

request the route sheets, which allegedly contradict the testimony of Lakes that

the toilet in which Shelton’s mask and gloves were found was cleaned on the

morning of December 20th. 

Shelton has included in the record several BFI route sheets on which the

toilet in question is listed for servicing. The sheets have a “run date” of

December 20, 1999, the day of the shooting. Lest the court interpret the route

sheets as indicating that the toilets listed therein were cleaned on the 20th,

Shelton notes that the “run date” is the date the form was created, and, under

BFI practice, a toilet is usually cleaned the day after the respective route sheet
06-10448

17

is printed. Shelton argues that the state wrongfully withheld these sheets at

trial, and that Young failed to aggressively pursue them. 

If read in the light mostfavorable to Shelton,the route sheets lend support

to, but do not outright prove, Shelton’s argument that Lakes did not clean the

toilet on the morning of the 20th. That is, assuming the accuracy of Shelton’s

description of BFI procedure,the route sheets raise the question as to whyLakes

would have been scheduled to clean the toilet on the 21st if he had cleaned it on

the 20th. However, even assuming that Young acted in an objectively

unreasonable manner in not more aggressively pursuing the route sheets,

Shelton cannot overcome the deference we owe to the state court’s conclusions

under the AEDPA. Again, to prove prejudice for ineffective assistance purposes,

a petitioner must demonstrate that his counsel’s assistance was so deficient as

to undermine confidence in the outcome of his trial. See Strickland, 466 U.S. at

694. This means that, under the AEDPA, Shelton must show that the state

habeas court was unreasonable in concluding that, assuming a dereliction of

duty on the part of Young, the outcome of Shelton’s trial is unreliable.

First, the sheets are not facially exculpatory; they do not unequivocally

show that Lakes did not clean the toilet on the 20th. At trial, Lakes testified

that on the days immediately preceding Christmas, BFI employees usually rush

to complete their Monday and Tuesday cleanings all on Monday. Lakes testified

that although the toilet in question was scheduled to be cleaned on Tuesday the

21st, he nevertheless cleaned it on Monday the 20th because, on that day, he

was already in the area, and therefore was positioned to complete his Tuesday

cleanings on Monday as planned. The jury was thus provided with a basis for

believing that Lakes in fact cleaned the toilet on the 20th, notwithstanding the

route sheets.

Second, even assuming the BFI records lend support to Shelton’s

argument, and assuming thatthe jury concluded thatthe toilet was not serviced

on the morning of December 20th, it does not follow that the jury would have
06-10448

18

accepted Shelton’s alibi that he placed the mask and gloves in the toilet on the

night of the 19th. Shelton admitted at trial that he was at the Hierro residence

on or before the night of the shooting. He admits that the mask and gloves were

his. He admits that he placed the mask and gloves in the toilet in which

authorities found them. In short, given the strength of the evidence against

Shelton, we cannot say that the state court’s application of Strickland was

unreasonable. 

With regard to the allegation that counsel failed to “pursue formal rulings

. . . on pre-trial matters, including discovery motions,” the only example Shelton

provides of counsel’s alleged dereliction is his failure to move for disclosure ofthe

mask drawing offered by Hierro to authorities after the shooting. In his state

court affidavit, Young did not deny that he failed to demand production of the

drawing. Rather, he asserted that the apparent discrepancies between the mask

depicted in the drawing and the one presented at trial were revealed to the jury

through oral testimony. The state court nevertheless concluded that Shelton

could not satisfy one or both prongs of Strickland. We cannot declare this

conclusion unreasonable. That is, we do not find a reasonable probability that

the jury would have acquitted Shelton even had it believed that Hierro told

police after the shooting that the perpetrator’s mask had one eye hole rather

than two. Because Shelton admits that the mask found in the toilet was his, in

order to make sense of any discrepancies in the mask descriptions the jury would

have been required to believe Shelton’s implausible story that he coincidentally

was on the Hierro premises for non-criminal purposes the night before the

shooting. 

Nor can we conclude that the state court unreasonably applied Strickland

in rejecting Shelton’s ineffective claim premised on counsel’s failure to “properly

challenge and object to the [S]tates’ introduction of perjury through” its

witnesses. With regard to the testimony of Hierro and Lakes, Shelton

presumably refers to Hierro’s placement of Catherine Shelton atthe scene of the
06-10448

19

shooting, and Lakes’testimony regarding the BFI records and the date the toilet

was cleaned. As explained above, the record provides no basis on which to

conclude that either lied in testifying against Shelton, nor do we have reason to

believe there exists evidence hereto undiscovered that would so demonstrate. 

Shelton also alleges perjury on the part of Steven Riddle, a neighbor of the

Hierros; David Nabors, a Rowlett Police lieutenant, who testified regarding the

description of the mask found in the toilet; and Jimmy Patterson, a Rowlett

Police detective, who testified regarding the mask drawing Marissa Hierro

provided to police. Shelton alleges that Riddle lied in testifying that he

recognized Shelton’s voice at the scene of the shooting. He also alleges that

“Patterson, Nabors and the prosecutors knew the mask found in the [toilet] was

not the assailant’s mask,” but nevertheless lied in identifying them as the same.

Shelton provides the court with no basis on which to conclude that either Riddle,

Nabors or Patterson committed perjury at trial. Shelton’s jury argument that

the witnesses’ various statements were not true, and his conclusory and

unsupported allegations that those witnesses knowingly offered inaccurate

testimony, is insufficient to establish perjury. 

Even if the record did contain evidence demonstrating perjury, Shelton

provided no basis for the state courtto conclude that counsel failed to adequately

subject those witnesses to meaningful cross-examination. In short, Shelton’s

allegations of “perjury” are conclusory and without evidentiary basis, and

therefore the district court did not err in rejecting them.

Finally, the district court was correct to reject Shelton’s ineffective

assistance claim based on counsel’s failure to assert his own alleged

ineffectiveness as a basis for a new trial. Because we find no basis on which to

conclude that Shelton actually suffered ineffective assistance, we see no reason

to believe the trial court would have concluded that he did. As such, we cannot

agree that, absent counsel’s alleged error, there is a reasonable probability that

the result of Shelton’s trial would have been different. See United States v.
06-10448

20

Rosalez-Orozco, 8 F.3d 198, 199 (5th Cir. 1993) (“In order to establish prejudice,

Rosalez must show that [there was] a reasonable probability that had counsel

moved for a judgment of acquittal, the motion would have been granted . . . .”);

Burston v. Caldwell, 506 F.2d 24, 28 (5th Cir. 1975) (“The failure of petitioner’s

counsel to move for a directed verdict did not render [counsel’s] assistance

ineffective where there was possibly sufficient evidence of guilt to support a

guilty verdict and no reason to believe that such a motion would be granted.”).

C. Prosecutorial Misconduct

Shelton argued before the district court that the prosecution withheld

exculpatory and impeachment evidence and induced its witnesses to lie on the

stand. Specifically, Shelton accuses the prosecution of wrongfully retaining the

aforementioned BFI records and other “exculpatory and impeachment evidence”

arising from the private suit between Hierro and Catherine Shelton. Shelton

also argued below that the state used “[f]raud, lies, and deceit” to win a guilty

verdict. 

To prevail on a Brady claim, “[t]he evidence at issue must be favorable to

the accused, either because it is exculpatory, or because it is impeaching; that

evidence must have been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S.

263, 281-82 (1999).

Notably, Brady’s materiality prong is identical to Strickland’s prejudice

prong. Compare Strickland, 466 U.S. at 687-88, 694 (“A party claiming

ineffective assistance must show that . . . he suffered prejudice . . . . To prove

prejudice, a petitioner must demonstrate . . . that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”),

with Dickson, 462 F.3d at 477 (“[For Brady purposes,] [m]ateriality is shown if

there exists a reasonable probability that had [the evidence in question ]been

disclosed the result at trial would have been different. (citation and internal

quotation marks omitted)). Thus, per our Strickland conclusion above, Shelton
06-10448

21

did not show below that his inability to access the BFI records undermines

confidence in the outcome of his trial. It follows that the state court’s Brady

ruling with regard to the BFI records was not unreasonable in light of clearly

established federal law. See Dickson, 462 F.3d at 477 (“Under [the] AEDPA, we

do not decide de novo whether a state prisoner has sufficiently proven a Brady

violation. Rather, we decide whether the state court’s Brady determination

resulted in a decision thatis contrary to, or involved an unreasonable application

of, clearly established federal law.”). With regard to Shelton’s other claims of

prosecutorial misconduct, the record is simply devoid of evidence to support

them.

III. CONCLUSION

We have carefully examined the record and find that Shelton simply

cannot overcome the deference we owe under the AEDPA to the state court’s

adjudication of his claims. The judgment of the district court is AFFIRMED.