UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-41259

IVAN RAY MURPHY,

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 Easter District of Texas

March 2, 2000

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

Petitioner Ivan Ray Murphy appeals the district court's denial

of his petition for writ of habeas corpus under 28 U.S.C. § 2254.

For the reasons set forth below, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On the night of January 9, 1989, Petitioner Murphy and Douglas

Stoff went to the home of Lula Mae Denning in Denison, Texas. Ms.2

D enning, an eighty-year-old lifetime friend of Murphy's, invite d

the two men into her home. Once inside, the two men robbed Ms.

Denning of jewelry, beat her to unconsciousness, and left her for

dead. They returned several hours later to steal more jewelry that

they could sell for more drugs.

A Grayson County Grand Jury indicted Murphy for the capital

murder of Ms. Denning, specifically charging that he had committed

murder during the course of the commission of a robbery or

burglary. Following a trial, the jury returned a guilty verdict,

and at a subsequent punishment hearing, the same jury answered

affirmatively the two special issues set forth in the version of

article 37.071 of the Texas Code of Criminal Procedure that was in

effect at the time of the offense. Accordingly, the trial court

imposed upon Murphy the sentence of death.

Murphy's conviction and sentence were automatically appealed

to the Texas Court of Criminal Appeals. On September 23, 1993, in

an unpublished opinion, that court affirmed Murphy's conviction and

sentence. And on October 11, 1994, the United States Supreme Court

denied Murphy's petition for writ of certiorari. S ee Murphy v.

Texas , 115 S. Ct. 312 (1994).

Murphy next filed an application for state habeas relief. The

same judge who had presided over Murphy's trial considered his

application and issued a one-page order stating that there were no

unresolved factual issues and recommending that Murphy's1 Four justices of the Texas Court of Criminal Appeals dissented

based upon the state district court's failure to hold an

evidentiary hearing.

3 application be denied. On February 28, 1996, the Texas Court of

Criminal Appe a ls denied Murphy's application for state habeas

corpus relief. 1 Murphy then filed his petition for habeas corpus

relief in federal district court asserting eleven claims for

review. Following the district court's denial of his petition,

Murphy received from the district court, pursuant to 28 U.S.C.

§ 2253(c)(2), a certificate of appea lability (“COA”) on the

f ollowing two of eight issues for which he sought a COA: (1)

whether the district court erred in refusing to grant Murphy's

request for discovery and an evidentiary hearing; and (2) whether

the district court erred in denying Murphy's claim that the grand

jury selection process of Grayson County, Texas, violated his Sixth

and Fourteenth Amendment rights. Murphy moved this Court for a COA

on four of the six issues that ha d been denied by the district

court. On March 8, 1999, a panel of this Court denied his request

for an additional COA. With the benefit of briefing and the oral

argument of counsel, we now proceed to the disposition of the

original two issues for which a COA was granted by the district

court.

II. DISCUSSION

Murphy's petiti on for writ of habeas corpus was filed on4

December 16, 1996, and is thus governed by the provisions of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). S ee Lindh

v. Murphy , 117 S. Ct. 2059, 2068 (1997); United States v. Carter

,

117 F.3d 262 (5 th Cir. 1997). The post-AEDPA version of 28 U.S.C.

§ 2254(d) provides as follows:

(d) An application for a writ of habeas

corpus on behalf of a person in custody

pursuant to the judgment of a Sta t e court

shall not be granted with respect to any claim

that was adjudicated on the merits in State

court proceedings unless the adjudication of

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

l ight of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d). We review pure questions of law under the

“contrary to” standard of sub-section (d)(1), mixed question of law

and fact under the “unreasonable application” st andard of subsection (d)(1), and pure questions of fact under the “unreasonable

determination of facts” standard of sub-section (d)(2). See Lamb

v. Johnson

, 179 F.3d 352, 356 (5 th Cir.), cert. denied

, 120 S. Ct.

522 (1999) (citing Drinkard v. Johnson , 97 F.3d 751, 767-69 (5 t h

Cir. 1996), overruled in part on other grounds, Lindh v. Murphy

,

117 S. Ct. 2059 (1997)).

An application of law to fac ts will only be deemed5

unreasonable when reasonable jurists “would be of one view that the

state court ruling was incorrect.” D rinkard

, 97 F.3d at 769.

Under this standard, we will grant habeas relief “only if a state

court decision is so clearly incorrect that it would not be

debatable among reas onable jurists.” I d. Additionally, under

§ 2254(e)(1), a state court's determination of a factual issue must

be presumed correct, and the habeas petitioner bears the burden of

rebutting the presumption by clear and convincing evi dence. The

presumption is especially stron g when, as here, the state habeas

court and the trial court are one and the same. S ee Amos v. Scott

,

61 F.3d 333, 347 (5 th Cir. 1995); James v. Collins , 987 F.2d 1116,

1122 (5 th Cir. 1993) (citing B uxton v. Lynaugh

, 879 F.2d 140, 146

(5th Cir. 1989)).

As a preliminary matter, Murphy argues that his sta te court

habeas petition was not “adjudicated on the merits” such that any

presumption of correctness under § 2254(d) could apply to the state

court's findings. Our review of the record convinces us that both

Murphy's direct criminal appeal and his state hab eas application

were denied based upon a review of the merits of his claims. Thus,

the standard set forth in 28 U.S.C. § 2254(d) applies to Murphy's

present claims.

A. Discovery and an Evidentiary Hearing

Murphy contends that the district court erred in two respects.6

First, he contends that it failed to grant his request for discovery

regarding his claim of attorney misco nduct arising from his

allegation that the prosecutor i nduced a jailhouse informant to

testify falsely and that the same prosecutor withheld B rady mat erial.

Second, Murphy contends that the dis trict court improperly refused to

grant his request for an evidentiary hearing based on the court’s

conclusion that he had presented no factual issues that, if resolved

in his favor, would entitle him to habeas corpus relief.

Discovery

Murphy asserts that the district court should have allowed him

discovery to support his cl aims that the prosecutor improperly

coerced a j ailhouse informant, Michael McGregor, into testifying

falsely against Murphy. Specifically, he wants to inspect and copy

a ll documents, tapes, files, written reports, memoranda, notes,

computer disks, or other written matter rela ting to the Grayson

County Attorney’s investigation of the case. Murphy argues that

under Bracy v. Gramley , 117 S. Ct. 1793 (1997), he is entitled to

discovery to support his claims of prosecutorial misconduct. This

court has already noted that the Bracy decision does not lower the

gate for discovery in habeas cases, but rather it merely reasserts

the standards of Harris v. Nelson , 89 S. Ct. 1082 (1969). Thus,

where “specific allegations before the court show reason to believe

that the petitioner may, if the facts are fully developed, be able to7

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.” G ibbs v. Johnson

, 154 F.3d 253, 258 (5 th Cir.

1998), cert. denied , 119 S. Ct. 1501 (1999).

The Bracy decision involved a defendant’s allegations that his

judge was biased against him because the judge had been accused, and

later convicted, of accepting bribes to fix murder trials. The

Supreme Court noted that Bracy’s claims were framed in specific terms

and were supported by objective, concrete factual evidence tending to

support his theory (i.e., the subsequent conviction and other

specific o bjective evidence). Good cause for discovery was

established in Bracy based primarily upon the specific nature of the

allegations and the c oncrete nature of the evidence proffered to

support Bracy’s theory.

Rule 6 of the Rules Governing § 2254 cases permits discovery

only if and only to the extent that the district court finds good

cause. Good cause may be found when a petition for habeas corpus

relief “establishes a prima facie claim for relief.” H arris

, 89

S. Ct. at 1086. Additionally, a petitioner's factual allegations

must be specific, as opposed to merely speculative or conclusory, to

justify discovery under Rule 6. S ee West v. Johnson

, 92 F.3d 1385,

1399-1400 (5 th Cir. 1996) (citing Ward v. Whitley

, 21 F.3d 1355, 1367

(5 th Cir. 1994)). Simply put, Rule 6 does not authorize fishing

expeditions. See Ward , 21 F.3d at 1367.2 The essential elements of a B rady claim are: (1) the

prosecution suppressed evidence; (2) the evidence was favorable to

the defense; and (3) the evidence was material to either guilt or

punishment. S ee Blackmon v. Scott , 22 F.3d 560, 564 (5 t h Cir.

1994).

8 Here, Murphy’s allegations of prosecutorial misconduct and the

withholding of Brady material are insufficie nt to entitle him to

discovery. Murphy has failed to establish a p rima facie claim under

Brady by virtue of his having failed to demonstrate the existence or

concealment of a deal between the prosecution an d the witness

McGregor or t hat proof of such a deal would be material to the

outcome. 2 Under B rady

, a defendant's du e process rights may be

vio lated when exculpatory or impeachment evidence, which is both

favorable to the defendant and material to guilt or punishment, is

concealed by the government. S ee Hughes v. Johnson

, 191 F.3d 607,

629 (5 th Cir. 1999). Evidence is material when there is a reasonable

probability that a different outcome would have resulted if the

government had disclosed the evidence prior to trial. S ee id.

(citing United States v. Bagley

, 105 S. Ct. 3375, 3379 (1985)).

Allegations that are merely “conclusio nary” or are purely speculative

cannot support a B rady claim. S ee id. at 629-30 (citing United

States v. Pretel , 939 F.2d 233, 240 (5 th Cir. 1991)).

After having carefully reviewed the entire record of this case,

including all pleadings, transcripts, affidavits, and supplemental

filings submitted to this Court, we conclude that Murphy’s conclusory9

allegation that the prosecutor failed to disclose a secret deal with

McGregor is based purely on speculation. We find that the B rady

materiality element is refuted by the fact that when cross-examined

at trial, McGregor denied any deal, and by the defense's introduction

of the trial testimony of another inmate, Joseph Potts, who testified

that McGregor wanted to get back at Murphy and also wanted to get out

of jail at all costs. Murphy’s counsel argued his theory of a secret

deal and all of these contentions vigorously to the jury which chose

to reject them.

Because Murphy has pointed to little if anything which could be

gleane d from additional discovery on this issue, and because by

failing to establish a prima facie Brady claim he has failed to show

good cause for discovery, we find that the district court did not err

in denying Murphy additional discovery on this issue.

Evidentiary Hearing

Murphy also contends that the district court erred in failing to

grant his request for an evidentiary hearing because the state courts

summarily denied relief on his claims. He contends that there was no

“adjudication” in the state c ourt which would entitle the state

court’s findings to a presumption of correctness. The government

urges that the district court did not accord the presumption of

correctness to the state court findings, rather it confined itself to

the conclusion that Murphy alleged no facts which, if resolved in his10

favor, would entitle him to relief.

Under AEDPA, requests for an evidentiary hearing are to be

evaluated under the provisions of 28 U.S.C. § 2254(e)(2). S ee

McDonald v. Johnson

, 139 F.3d 1056, 1059 (5 th Cir. 1998). A habeas

petiti oner’s entitlement to an evidentiary hearing, when he has

failed to develop the factual basis of a claim, is restricted to the

narrow exceptions of subsection (e)(2) which provides as follows:

(2) If the applicant has failed to develop the

factual basis of a claim in Stat e 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 reasonabl e factfinder would have found

the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). These exceptions are applicable only where

the failure to develop the factual basis is the result of a decision

or omission of the petitioner himself. See McDonald , 139 F.3d at

1059.

Here, the government argues th at under § 2254(e)(2) Murphy

cannot be entitled to an evidentiary hearing because his claims are11

not derived from any new rule of law from the Supreme Court, and

because no ne w

, previously undiscoverable facts establish his

innocence of the crime. Indeed, as noted above, all of the evidence

relied upon by Murphy to support his claim that the government had a

deal with McGregor was available before, and was presented and argued

at the original trial.

Murphy contends that he did not fail to develop the factual

basis of his claims in state court, r ather he argues that he was

unable to do so because the state courts denied him discovery and an

evidentiary hearing, and that as a result, § 2254(e)(2) does not

automatically deny him the right to an evidentiary hearing in federal

court. However, overcoming the narrow restrictions of § 2254(e)(2)

does not guarantee a petitioner an evidentiary hearing, it merely

opens the door for one; once a petitioner overcomes the obstacles of

§ 2254(e)(2), under Rule 8 of the Rules Governing § 2254 Cases, the

district court retains d iscretion over the decision to grant an

evidentiary hearing. S ee McDonald

, 139 F.3d at 1059-60. Thus, we

review the district court’s denial of an evidentiary hearing in this

scenario for an abuse of discretion. See id. at 1059.

Our pre-AEDPA jurisprudence is instructive in evaluating

whether the district court's denial of an evidentiary hearing was

a n abuse of discretion. Prior to the enactment of AEDPA, we

consistently held that when there is a factual dispute which “‘if

resolved in the petitioner's favor, would entitle [the petitioner]12

to relief and the state has not afforded the petitioner a full and

fair hearing,’ a federal habeas corpus pe titioner is entitled to

discovery and an evidentiary hearing.” P erillo v. Johnson

, 79 F.3d

441, 444 (5 th Cir. 1996) (quoting W ard v. Whitley

, 21 F.3d 1355,

1367 (5 th Cir. 1994)); see also Moawad v. Anderson , 143 F.3d 942,

947-48 (5 th Cir.), cert. denied

, 119 S. Ct. 383 (1998). To find an

abuse of discretion that would entitle Murphy to an evidentiary

hearing, we must find that the state did not provide him with a

full and fair hearing and we must be convinced that if proven true,

his allegations would entitle him to relief. S ee Moawad

, 143 F.3d

at 948.

With respect to whether Murphy was afforded a full and fair

h earing by the state court, Murphy contends that he reques ted

discovery and an evidentiary hearing in the state habeas court, but

that his requests were denied. The state habeas court then denied

his application for habeas relief based upon just those pleadings

and affidavits that Murphy had submitted, without waiting for the

government’s respon se and without holding a live evidentiary

hearing, i.e. Murphy was given only a paper hearing, see Perillo

,

79 F.3d at 446 n.7.

A full and fair hearing does not necessarily require live

testimony. We have repeatedly found that a paper hearing is

sufficien t to afford a petitioner a full and fair hearing on the

factual issues underlying his claims, especially where as here, the13

trial court and the state habeas court were one and the same. S ee

Perillo

, 79 F.3d at 446-47 (listing cases where the presumption of

correctness, which attached to factual determinations made after a

full and fair hearing under the pre-AEDPA version of § 2254(d), was

established with only a paper hearing before the same state judge

who presided over the criminal trial). In his report and

recommen d ation, the magistrate judge conceded that Murphy may

arguably have been denied a ful l and fair hearing in the state

court. We are not as convinced as the magistrate judge that Murphy

was denied a full and fair hearing as the state habeas court, after

first presiding over Murphy’s criminal trial and after considering

the pleadings and affidavits that had been filed in support of

Murphy’s claims, fully considered the merits of Murphy’s claims.

Additionally, while the numerous cas es cited by Murphy do

support the notion that a summary denial by a state court may entitle

a petitioner to an evidentiary hearing in feder al court, they

overlook this court’s holding that, where a district court has before

it sufficient facts to make an informed decision regarding the merits

of a claim, a district court does not abuse its discretion in

refusing to grant an evidentiary hearing (even where no factual

findings are explicitly made by any state court). S ee M cDonald

, 139

F.3d at 1060 (denying evidentiary hearing where state courts had

failed to make any specific factual findings because the district

court had sufficient affidavits from the parties in interest to make14

a determination). Here, the magistrate judge and the district court

reviewed the record, pleadings, and all available evidence, including

exhibits and affidavits in support of Murphy’ s alleged claims.

Furthermore, the magistrate judge recognized that Murphy arguably may

not have been allowed a full and fair hearing in the state court, but

nonethele ss determined that the fact that Murphy failed to

demonstrate a factual dispute that would entitle him to relief if it

were resolved in his favor, justified denial of an evidentiary

hearing.

We next consider whether there is a factual dispute that, if

resolved in Murphy’s favor, would entitle him to relief. This

Court has consistently held that a petitioner is entitled to an

evidentiary hearing only where a factual dispute, if resolved in his

favor, would entitle him to relief, and not where a petitioner’s

allegations are merely conclusory allegations unsupported by

specifics. See Ward , 21 F.3d at 1367.

Murphy alleges that there was an undisc losed secret deal between

the prosecutor and McGregor, but that he needs more discovery and an

evidentiary hearing in order to fully develop this claim. His

request in this regard is tantamount to an impermissible fishing

expedition. See Perillo

, 79 F.3d at 444 (noting that Rule 6 of the

Rules Governing § 2254 Cases “‘does not authorize fishing

expeditions.’” (quoting Ward

, 21 F.3d at 1367)). Discovery may

only be permitted with respec t to a specifically alleged factual15

dispute, not to a general allegation. See Ward , 21 F.3d at 1367

.

Here, Murphy’s claim was adequately developed below and Murphy

has failed to demonstrate anything more than was presented and

argued to the jury at trial. He seeks discovery and an evidentiary

hearing in the hopes of finding additional evidence which might

support his conclusory and speculative claim, but not with respect

to a specific factual allegation which would entitle him to relief.

As we have already noted, the discovery provisions of Rule 6 do not

contemplate this type of fishing expedition. We therefore find that

Murphy’s conclusory allegations are insufficient to require either

discovery or an evidentiary hearing, and the district court did not

abuse its discretion in denying Murphy's request for the same.

B. Grand Jury Selection in Grayson County

In this second issue, Murphy contends that the grand jury

selection process in Grayson County systematically excludes young

people in violation of his Sixth Amendment right to an impartial jury

and his Fourteenth Amendment right to equal protection. He correctly

notes that the Sixth Amendment has been construed to require a petit

jury to be drawn from a fair cross-section of the community in which

the proceedings are held. See Taylor v. Louisiana , 95 S. Ct. 692

(1975). He argues that the fair cross-section requirement applies to

grand juries as well. S ee Atwell v. Blackburn

, 800 F.2d 502 (5 th Cir.16

1986). However, as the government notes, A twell does not

specifically so hold. In fact, the A twell court in a footnote stated

“[w]e do not hold that Atwell had a right

. . . to a grand jury

selecte d under cross-sectional procedures similar to those implicated

by the Sixth Amendment.” A twell

, 800 F.2d at 507 n.10. In A twell

,

we assumed arguendo that if Atwell did have the right to a grand jury

in conformance with the cross-sectional requirements of the Sixth

Amendment, that right was not violated in his case.

The government argues first that at the time Murphy’s conviction

became final in 1994, no Supreme Court authority dictated a rule that

the fair cross-section requirement applies to state grand juries.

The government suggests that th e Sixth Amendment cross-section

argument advanced by Murphy does not apply retroactively to his grand

jury because, under Teague v. Lane

, 109 S. Ct. 1060 (1989), none of

the appropriate exceptions to the non-retroactive applicability of

the grand jury cross-sectional requirement apply.

We are not as convinced as the government that the fair crosssection requirement of the Sixth Amendment did not apply to Murphy's

grand jury, however, we are pe rsuaded that T eague bars our

consideration of Murphy's claim that t he fair cross-section

requirement was violated by the alleged systematic exclusion of young

people by the grand jury selection process in Grayson County.17

Under Teague

, we are prohibited from granting habeas relief

based on "new" rules of constitutional law. A rule of

constitutional law is “new” under Teague , if the result sought by

application of the rule was not "dictated by precedent existing at

the time th e defendant's conviction became final." T eague

, 109

S. Ct. at 1070. Our duty is to "[s]urve[y] the legal landscape as

it then existed and determine whether a state court considering

[Murphy's] claim at the time his conviction became final would have

felt compelled by existing precedent to conclude that the rule

[sought to be applied] was required by the Constitution." C aspari

v. Bohlen

, 114 S. Ct. 948, 953 (1994)(internal quotations and

citations omitted). The only exceptions to the non-retroactivity

principle of Teague are “for rules that would place certain primary

conduct beyond the government's power to proscribe or bedrock rules

of criminal procedure that are necessary to ensure a fundamentally

fair trial.” F elder v. Johnson

, 180 F.3d 206, 211 (5 th Cir.)(citing

O'Dell v. Netherland

, 117 S. Ct. 1969, 1973, (1997)), cert. denied,

120 S. Ct. 63 (1999).

Murphy's conviction and sentence became final for purposes of

our Teague analysis on October 11, 1994, when the Supreme Court

denied his petition for certiorari after his conviction was

affirmed on direct review in the Texas Court of Criminal Appeals.

See Murphy v. Texas

, 115 S. Ct. 312 (1 994). We have, therefore,

limited our analysis to a survey of the legal landscape as it existed18

on October 11, 1994.

The government urges that when Murphy's conviction became final,

there existed no pr ecedent establishing a defendant's right to a

grand jury selected in conformance with the Sixth Amendment's fair

cros s-section requirement. While in A twell

, we declined to

explicitly hold th at Atwell had a right to a grand jury which

represented a fair cross-section of the community, our earlier

decisions are more specific. In C urry v. Estelle

, 524 F.2d 981 (5 th

Cir. 1975), relying on the Supreme Court's then recent decision in

Taylor v. Louisiana

, 95 S. Ct. 692 (1975), we held t hat if a

defendant could establ ish that a grand jury pool systematically

excluding a substantial and identifiable class of citizens did not

represent a fair cross-section of the community, his conviction was

subject to attack. S ee Curr y , 524 F.2d at 983. We note

additionally, that by October 1994, the Supreme Court had

consistently held tha t racial discrimination in the selection of

grand juries was violative of the fair cross-section requirement.

See Peters v. Kiff

, 92 S. Ct. 2163, 2168 (1972); Smith v. Texas

, 61

S. Ct. 164, 166 (1940). Thus, at the time Murphy's conviction became

fi nal, our precedent dictated that the fair cross-section requirement

of the Sixth Amendment applied to the selection process for grand

juries.

Despite the foregoing, Murphy's burden under Teague

, is to show

that the particular result he desires was dictated by a particular19

precedent, that is, he must show that at the time his conviction

became final, there existed precedent which would have compelled the

state court to conclude that he was entitled to a grand jury

comprised of a fair cross-section of the community with respect to

certain age groups, more specifically, one which represented 18 to 30

year olds. In the absence of specific binding precedent prohibiting

the exclusion of a specific group of individuals as violative of the

fair cross-section requirement of the Sixt h Amendment, T eague

prohibits us from granting relief. S ee, e.g., Wilkerson v. Whitley

,

28 F.3d 498, 508 (5 th Cir. 1994)(en banc)(finding meritless, in light

of the standard of proving that a result is dictated by particular

precedent, the claim that cases prohibiting the exclusion of blacks

from the grand jury selection process dictated the conclusion that

the systematic exclusion of women from grand juries was

unconstitutional).

While Murphy argues that the systematic e xclusion of young

people, ages 18 to 30 years old, from the grand jury sele ction

process in Grayson County is unconstitutio nal because it violates the

fair cross-section re quirement, he has identified no precedent

setting forth such a rule, and we have found none so specific. Thus,

any declaration by this Court that the fair cross-section requirement

of the Sixth Amendment is violated by the systematic exclusion of a

group of individuals ident ified by their age, and any corollary

finding that a grand jury selection process so excluding a specific3 At the time Murphy's conviction became final in October 1994,

there existed no precedent dictating the conclusion that a

defendant's equal protection rights are violated by the systematic

exclusion from a grand jury selection process of young people, ages

18 to 30 years old.

We pause here to note that in order to make a prima facie showing

of an equal protection violation related to grand jury selection,

Murphy must show: (1) that the group allegedly discriminated against

is “distinct” within the community; (2) that the group has been

substantially underrepresented in jury venires over a significant

period of time; and (3) that the selection process is either not

racially neutral or is susceptible to use as a tool for

discrimination. S ee Castaneda v. Partida

, 97 S. Ct. 1272, 1280

(1977). A nd, although we do not decide the issue today

, we note

that several of our sister circuit courts of appeals have concluded

that the group of individuals allegedly excluded according to Murphy

(young persons between the ages of 18 and 30), is not a “cognizable”

or “distinctive” group within the community. S ee e.g., Wysinger v.

Davis

, 886 F.2d 295, 296 (11 th Cir. 1989) (age alone does not identify

an ”identifiable” group); Ford v. Seabold

, 841 F.2d 677, 681-82 (6 th

Cir. 1988) (young adults not cognizable); Johnson v. McCaughtry

, 92

F.3d 585, 590-93 (7 th Cir. 1996) (18 to 25 year olds not cognizable);

20 age group is unconstitutional, would effectively announce a “new”

rule of constitutional law. Under T eague

, we are precluded from

applying such a “new rule” to Murphy's case unless he satisfies one

of the two exceptions noted above. We conclude that neither of the

narrow exceptions to the Teague bar apply in this case. Having been

referred to none, and having found no case dictating the result

Murphy see ks, and having concluded that neither of the narrow

exceptions to the Teague non-retroactivity principle apply, we are

prohibited from granting the relief Murphy seeks in this issue. For

similar reasons, we conclude that Murphy's alternative claim that

Grayson County's grand jury selection process violates his Fourteenth

Amendment right to equal protection is likewise Teague barred. 3Barb er v. Ponte , 772 F.2d 982, 996-1000 (1 s t Cir. 1985) (en banc)

(young adults aged 18-34 are not “cognizable”). Additionally, we

have ourselves previously held that there is nothing distinctive

about a short age range of young persons. S ee United States v.

Kuhn

, 441 F.2d 179, 180 (5 th Cir. 1971) (nothing identifiable about 21

to 23 year olds). Thus, irrespective of T eague

, we express serious

doubt as to whether Murphy would be entitle d to relief on equal

protection grounds.

21 V. CONCLUSION

For all of the reasons set forth above, we are unconvinced that

the district court erred in refusing to grant Murphy either discovery

or an evidentiary hearing, and we are precluded by the nonretroactivity principle announced in Teague v. Lane from granting

relief on Murphy's claims that the grand jury selection process in

Grayson County, Texas, is violative of his rights under the Sixth or

Fourteenth Amendments. Accordingly, we AFFIRM the district court's

denial of habeas corpus relief under 28 U.S.C. § 2254.