1 Pursuant to 5 TH C IRCUIT R ULE 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that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IRCUIT R ULE 47.5.4. 1 United States Court of Appeals Fifth Circuit 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 the2

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, thejury’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. Even3

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.