* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4.

1 28 U.S.C. § 2254 provides, in relevant part:

(a) The Supreme Court, a Justice th ereof, a circuit judge, or a district court shall

-1- UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

___________

No. 01-10763

____________

JAVIER SUAREZ MEDINA,

Petitioner - Appellant,

versus

JANIE COCKRELL, Director, Texas Department of Criminal Justi c e,

Institutional Division,

Respondent - Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:98-CV-2511-D

January 16, 2002

Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.

EMILIO M. GARZA, Circuit Judge: *

Petitioner-Appellant Javier Suarez Medina, a Texas prisoner, was convicted of capital murder

and sentenced to death. Medina sought collateral review of his sentence, filing a 28 U.S.C. § 2254 1entertain an application for a writ of habeas corpus in behalf of a person in custody

pursuant to the judgment of a State court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254.

2 28 U.S.C. § 2253(c) provides, in relevant part:

(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may

not be taken to the court of appeals from--

(A) the final order in a habeas corpus proceeding in which the detenti on

complained of arises out of process issued by a State court; or

(B) the final order in a proceeding under section 2255.

28 U.S.C. § 2253(c).

3 The Texas Court of Criminal Appeals provides a full description of the background facts of

Medina’s case. See Medina v. State , No. 70,892 (Tex. Crim. App. May 5, 1993) (en banc).

-2- petition for a writ of habeas corpus in the United States District Court for the Northern District of

Texas. The district court denied his petition for habeas corpus and then denied his application for a

Certificate of Appealability (“COA”). Pursuant to the requirements of 28 U.S.C. § 2253(c), 2 Medina

now requests that we grant him a COA so that he may appeal the district court’s denial of his habeas

petition. We hold that Medina has failed t o make a substantial showing of the denial of a

constitutional right and therefore deny his request for a COA.

Medina was convicted by a jury for the murder of undercover police officer Lawrence Cadena

during the course of a drug sale and robbery. 3 During the penalty phase of the trial, the state sought

to introduce the testimony of Michael Mesley regarding an unadjudicated extraneous offense.

Mesley, who had recently identified Medina from his picture on television, claimed that Medina had

robbed and shot him and his wife two years earlier. The trial court, after conducting a preliminary

hearing outside of the presence of the jury, over the objections of Medina’s attorneys, admitted the

evidence as probative of whether Medina constituted a continuing threat to society. S ee T EX

. C ODE4 Texas procedure in a capital case involves submitting three special questions to the jury. The

three questions are whether the defendant (1) comm it t ed t he offense deliberately; (2) whether the

defendant would constitute a continuing threat to society; and (3) if raised by the evidence, whether

the conduct of the defendant in killing the deceased was unreasonable in response to the provocation,

if any of the deceased. T E X

. C ODE C RIM

. P. art. 37.071(b) (Vernon 1981). The state must prove

each issue submitted to the jury beyond a reasonable doubt. T E X

. C ODE C RIM

. P. art. 37. 071(c)

(Vernon 1981). If the jury returns an affirmative finding on each issue, the court must sentence the

defendant to death. Otherwise, the court imposes a life sentence. T E X

. C ODE C RIM

. P. art. 37.071(d)

(Vernon 1981).

-3- C RIM

. P. art. 37.071(b)(2) (Vernon 1981). 4 Mesley testified and was subject to cross-examination.

In ad dit io n, Medina’s attorneys called several witnesses in order to establish an alibi for the

unadjudicated robbery offense. Based in part on Mesley’s testimony, the jury sentenced Medina to

death.

M e dina now seeks permission to appeal the district court’s denial of his § 2254 habeas

petition. In order to grant a COA, we require that Medina must make a “substantial showing of the

denial of a

co nstitutional right.” S lack v. McDaniel

, 529 U.S. 473, 483 (2000). A “substantial

showing” requires the applicant to “demonstrate that the issues are debatable among jurists of reason;

t hat a court could resolve the issues (in a different manner); or that the questions are adequat e t o

deserve encouragement to proceed further.” D rinkard v. Johnson

, 97 F.3d 751, 755 (5 t h Cir. 1996)

(quoting Barefoot v. Estelle

, 463 U.S. 880, 893 n. 4 (1983)), overruled on other grounds by Lindh

v. Murphy

, 521 U.S. 320 (1997). “Any doubts as to whether a COA should issue must be resolved

in [Medina’s] favor.” H ernandez v. Johnson

, 213 F.3d 243, 248 (5 th Cir. 2000). Moreover, the

severity of Medina’s prescribed penalty also colors our consideration of whether he has met his

“substantial showing” burden. H ill v. Johnson

, 210 F.3d 481, 484 (5 th Cir. 2000). Thus, because this

case involves the death penalty, we should be especially careful in our analysis of Medina’s claims.

Hernandez , 210 F.3d at 484.-4-

In addition, when assessing whether Medina is entitled to a COA, “we must keep in mind the

deference scheme laid out in 28 U.S.C. § 2254(d).” Moore v. Johnson

, 225 F.3d 495, 501 (5 th Cir.

2000), cert. denied, 121 S. Ct. 1420 (2001). Pure questions of law and mixed questions of law and

fact raised in habeas petitions are reviewed under § 2254(d)(1), and questions of fact are reviewed

under § 2254(d)(2). M

artin v. Cain

, 246 F.3d 471, 475 (5 th Cir . 2001). Under the standard i n §

2254(d)(1), federal courts can only issue a writ if the decis ion of the state court was either (1)

“contrary to

. . . clearly established Federal law, as determined by the Supreme Court of the United

States” or (2) “involved an unreasonable application of

. . . clearly established Feder al law.” 28

U.S.C. § 2254(d)(1); Williams v. Taylor

, 529 U.S. 362, 412 (2000). A decision is contrary to clearly

established Federal law “if the state court arrives at a conclusion opposite to that reached by [the

Supreme Court] on a question of law or if the state court decides a case differently than [the] Court

has on a set of materially indistinguishable facts.” Id. at 413. A state court decision constitutes an

unrea so nable application of Federal law “if the state court identifies the correct governing legal

principle from [the] Court’s decisions but unreasonably applies that principle to the facts of the

prisoner’s case.” Id

.

In this petition for a COA, Medina alleges two constitutional infirmit ies with the state court

proceedings. First, he claims that the prosecution violated his Fifth and Fourteenth Amendment rights

by failing to disclose material, exculpatory evidence during the penalty phase of the trial. Specifically,

Medina argues that the prosecution withheld t he 911 call sheet from the evening of his alleged

shooting of Mesley. Medina contends that if the prosecution had disclosed to him that they had this

sheet, the jury likely would not have sentenced him to death. Seco nd, Medina challenges the

introduction of Mesley’s t est imo ny, claiming that it was materially false and unreliable. Thus, its-5-

admission was contrary to both the Texas evidentiary rules and clearly established Supreme Court

precedent.

The first issue present ed in Medina’s application for a COA is whether the prosecution

improperly withheld material, exculpatory evidence. Prosecutors have a duty to disclose evidence

that is (1) favorable to the accused; and (2) material to the proceedings. B rady v. Maryland

, 373

U.S. 83, 87 (1963). Favorable evidence is evidence that, “if disclosed and used effectively,. . . may

make the difference between conviction and acquittal.” U nited States v. Bagley

, 473 U.S. 667, 676

(1985). Evidence is material “only if there is a reasonable probability t hat , had t he evidence been

disclosed to the defens e, t he result o f the proceeding would have been different.” I d. at 682. A

“reasonable probability” is a probability sufficient to undermine confidence in the outcom e. I d.

Failure to turn over such evidence to the defense violates the defendant’s due process rights. Id.

Whether documents must be produced and whether they are material under Brady is a mixed

question of law and fact. Trevino v. Johnson , 168 F.3d 173, 184 (5 th Cir.), cert. denied

, 527 U.S.

1056 (1999). The state habeas court properly concluded that B rady provided the appropriate legal

standard for analyzing this claim. Thus, the district court could have issued a writ of habeas corpus

only if the Texas state court unreasonably applied Brady to the facts. See 28 U.S.C. § 2254(d)(1).

In turn, we can grant a COA only if rea so nable jurists could objectively disagree with regard to

whether the state trial court so erred in its application of standard articulated in Brady

. S ee Moore

,

225 F.3d at 502.

The prosecution failed to disclose the 911 call sheet. Thus, the sole inquiry is whether the

state court erred in concluding that the call sheet was either not favorable to the defense or material

to the proceedings. The specific facts of Mesley’s shooting are important to this issue. Mesley-6-

claimed that Medina shot him at around 8:40 p.m. The 911 call sheet then established that he placed

a call to an emergency services operator at 8:56 p.m and again at 9:22 p.m. Medina’s alibi was that

he was at work at a nearby Burger King until 10:53 p.m. Medi na argues that the prosecuti on

theorized that Medina left work at around 8:30 p.m. and had a co-worker clock him out at 10:53 p.m.

Thus, according to Medina, t he information in the 911 call sheet made it improbable, if not

impossible, that Medina robbed Mesley because it established that there w as insufficient time for

Medina to leave work, travel to the crime scene, and then commit the offense.

Medina’s contention, however, is incorrect. Medina’s arguments focus on the fact that the

call sheet provided material, exculpatory evidence that he would not have had time to leave work at

8:30 p.m. and then commit the alleged robbery a few minutes later. The prosecution, however, never

presented any evidence that Medina did in fact leave work at 8:30 p.m. The prosecution’s questions

only undermined Medina’s alibi that he was physically present at work by attempting to establish that

a co-worker could clock in or out for another employee. Therefore, if the defense had presented the

call sheet during this questioning, it would not have made a difference between a life sentence and

a death sentence because it was not relevant to what the prosecution was attempti ng to establ i sh:

Medina’s presence or absence at work at the time of the Mesley incident.

Even assuming the prosecution did assert that Medina left work at 8:30 p.m., it is not clear

the 911 call sheet is favor able to the defense. Mesley testified that the robbery took place at 8:50

p.m. According to the 911 sheet, Mesley placed the first call to emergency services at 8:56 p.m.

Thus, the call sheet appears to support his chronology of the events. Moreover, it arguably permitted

even more time for Medina to leave work and travel to the crim e scene t han in Mesley’s original

testimony. Given the nature of the undisclosed evidence, the state court did not unreasonably apply-7-

Brady to the facts by concluding that the call sheet was not favorable to the defense or material to

the proceedings.

The second issue presented in Medina’s application for a COA is whether he was denied a fair

trial because the State utilized and relied upon allegedly inaccurate evidence in violation of the Eighth

Amendment’s prohibition of cruel and unusual punishment as well as the Due Process Clause.

In order to state a claim that the prosecution utilized and relied upon inaccurate witness

testimony in the sentencing phase of capital murder trial, a defendant must establish that the evidence

was both false and material. H er nandez , 213 F.3d at 243. The state habeas court concluded that

Medina had failed to prove either of these elements. We review the state court’s conclusion as to the

admissibilit

y of Mesley’s testimony solely to determine whether it was contrary to clearly established

Federal law, as determined by the Supreme Court, or whether it was an unreasonable application of

that precedent. See 28 U.S.C. § 2254(d)(1).

M edina first contends that Mesley’s testimony was inadmissible under the Texas Code o f

Criminal Procedure. According to Medina, the trial court’s violation o f st ate evidentiary rules

resulted in a denial of his due process rights because it rendered the result of the trial fundamentally

unfair. H errera v. Collins , 904 F.2d 944, 949 (5 th Cir. 1990); Spencer v. Texas

, 385 U.S. 554, 561

(1967) (The Due Process Clause guarantees the fundamental elements of fairness in a criminal trial.).

Texas law is clear that unadjudicated extraneous offenses are generally admissible at the penalty phase

of a capital murder trial. S ee T EX

. C ODE C RIM

. P. art. 37.071; Clark v. Collins

, 19 F.3d 959 (5 th Cir.

1994). For such evidence to be admissible, the state need only establish that the evidence is relevant

and that the accused actually participated in the extraneous offense. S ee, e.g., Burks v. State

, 876

S.W.2d 877, 909 (Tex. Crim. App. 1994). The trial court held an evidentiary hearing and concluded-8-

that the evidence was relevant to the issue of Medina’s future dangerousness. In addition, the

testimony itself established that Medina participated in the extraneous offense. Given these facts, the

state court concluded that the evidence was properly admissible under the Texas Code of Criminal

Procedure.

In his current § 2254 petition, Medina has not presented any evidence that the state court

unreasonably reached its conclusion as to the admissibilit y of Mesley’s testimony. Medina argues that

Mesley’s testimony was unreliable because the identification occurred two years after the event, the

circumstances of the robbery made identification difficult, and Mesley’s identification was not

independently corroborated. These arguments, however, do not address the issue of whether

Mesley’s testimony was false. Instead, they concern the weight the jury should have accorded the

evidence. Medina’s attorneys had the opportunity to inform t he jury of these facts on crossexamination and they actively sought to undermine Mesley’s account. Medina has thus failed to make

a substantial showing of the denial of a consti t utional right based on the admission of Mesley’s

testimony under the Texas evidentiary rules.

In addition, Medina claims that the state habeas court violated his constitutional rights because

its decision was contrary to the Supreme Court’s holding in Johnson v. Mississippi

, 486 U.S. 578

(1986). Specifically, Medina contends that J ohnson establishes a heightened requirement of reliabilit y

for evidence of prior offenses or conduct in a capital trial. He argues that both the state and district

court misapplied J

ohnson by admitting Mesley’s inaccurate and inadmissible testimony under this

heightened evidentiary standard.

In Johnson

, the prosecution sought to introduce evidence during the penalty phase of a capital

trial that the defend ant had previo usly been convicted of a felony involving the use or threat of-9-

violence. Johnson , 486 U.S. at 581. The sole evidence presented by the prosecution consisted of

an authenticated copy of the defendant’s commitment t o a prison in New York following his

conviction for the alleged offense. I d. Subsequently, the New York conviction was vacated after the

defendant was sentenced to death. The Court held that reliance on the vacated conviction to support

the death sentence violated the defendant’s Eighth Amendment rights. In reaching its conclusion, the

Supreme Court carefully distinguished between facts establishing the conviction and evidence relating

to the underlying offense. The Court stated: “The possible relevance of the conduct which gave rise

to the assault charge is of no significance here because the jury was not presented with any evidence

describing that conduct

-- the document presented to the jury proved only the facts of conviction and

confinement, nothing more.” I d. at 586. Thus, J

ohnson focused on whether the conviction itself was

relevant to the sentencing decisio n. It did not address the propriety of admitting testimony of the

specific conduct of the defendant.

Co nfronted with facts similar to this case, we have concluded that J ohnson is inapp licable

when the victim of an extraneous offense testifies during the penalty phase of a capital trial

. S ee

Gibbs v. Johnson

, 154 F.3d 253, 258 (5 th Cir. 199 8). In Gibbs , we stated: “In J ohnson the

invalidated conviction was the sole evidence of the prior conduct. The court in J ohnson emphasized

that because the prosecutor relied upon a judgment of conviction to prove the prior acts, the reversal

took away the prosecutor’s evidence. The evidence of Gibbs’s prior acts was the testimony at trial

of the victim.” I

d. Based on the distinction we drew in G ibbs

, the di strict court correctl y deni ed

relief because Medina failed to prove that the state habeas court arrived at a conclusion different from

that of the Supreme Court on a materially indistinguishable set of facts.

Following our reasoning in Gibbs

, the district court found that t he facts of Medina’s case-10-

were materially distinguishable from those in Johnson

. Unlike in J ohnson

, the jury did not sentence

Medina to death based on a vacated conviction. Instead, the jury heard testimony from one of the

vict ims of the prior offense, who identified Medina as the perpetrator. Medina’s attorneys crossexamined Mesley and presented evidence that Medina was at work at the time of the alleged robbery.

From this evidence, the jury w as able t o assess Mesley’s credibility, permitting them to assign the

appropriate weight to his testimony in reaching their sentenc ing decisio n. Based on this material

distinction, the state court’s decision was not contrary to the Supreme Court’s decision in Johnson

.

Lastly, Med ina claims that the state court’s determination that Mesley’s testimony was

admissible was contrary to clearly established federal law as determined by the Supreme Court in

United States v. Tucker

, 404 U.S. 443 (1972). In T ucker

, the district court relied on several previous

felony convictions in sentencing a defendant to the maximum prison term for armed robbery. Several

years after the district court handed down it s sentence, the defendant’s prior convictions were

invalidated because the defendant was denied his right to counsel. The Court remanded the case for

resentencing because the original sentence was “founded at least in part upon misinformatio n of

constitutional magnitude.” Id. at 447.

Medina’s arguments are again incorrect. Unlike in T ucker

, the jury did not sentence Medina

based on an unconstitutional prior conviction. Instead, the jury heard testimony from Mesley about

the fac t ual circumstances underlying the extraneous offense. Thus, the present case is materially

distinguishable from the situation in Tucker . Medina again has failed to demonstrate that the state

court’s determination was contrary to clearly established federal law.

Because Medina has failed to make a substantial showing of the denial of a constitutional right

with regard to either of his arguments, his application for a COA is DENIED.