1Pursuant to 5TH CIRCUIT RULE 47.5, this Court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIRCUIT

RULE 47.5.4.

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United States Court of Appeals

Fifth Circuit

FILED

January 5, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 04-70018

_____________________

TONY EGBUNA FORD,

Petitioner - Appellant,

versus

DOUG DRETKE, Director,

Texas Department of Justice,

Correctional Institutions Division,

Respondent - Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

District Cause No. 01-CV-386

_________________________________________________________________

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM.1

Tony Egbuna Ford was convicted of capital murder and

sentenced to death. Ford seeks a certificate of appealability

(COA) to appeal the district court’s denial of federal habeas

relief for five claims. After considering Ford’s request, the

court GRANTS Ford a COA on the following issues: (1) whether the

district court erred in determining that Ford’s trial counsel

provided effective assistance in advocating his request for the
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appointment of an expert in eyewitness identification, (2)

whether the district court erred in determining that Ford was not

entitled to an eyewitness identification expert, and (3) whether

the district court erred in determining that Ford’s appellate

counsel was effective despite his failure to raise a due process

claim based on the trial court’s failure to appoint Ford an

expert.

The court DENIES a COA for Ford’s claim that he was entitled

to an evidentiary hearing to develop his claim that the police

identification process was unconstitutionally suggestive. Ford 

had an opportunity to develop the factual basis of his claim

about the identification process. Although Ford did not have the

assistance of an expert, the state trial judge conducted an

evidentiary hearing on Ford’s motion to suppress. During that

hearing, Ford’s attorneys demonstrated the problems with the

photo spread. Even if the photo spread was suggestive, the

jury’s verdict resulted from in-court identifications, not outof-court identifications using the photo spread. Ford has not

made a substantial showing of the denial of a constitutional

right.

The court also DENIES Ford a COA on his claim that the

district court erred by denying his request for discovery to

develop a Brady claim. The new evidence Ford relies upon is too

speculative to undermine confidence in the jury’s verdict. Even
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if the prosecutor had the information that Ford seeks discovery

about, there is no reasonable probability the result of the

proceeding would have been different. The district court did not

abuse its discretion in denying Ford’s request for discovery.

With this matter resolved, the court ORDERS the clerk to set

this appeal for oral argument. Although no further briefing is

required, the court will accept additional briefing if the

parties request leave of court.

REQUEST FOR CERTIFICATE OF APPEALABILITY GRANTED IN PART & DENIED

IN PART.