UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-10549
PAUL DEBORD,
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 Northern District of Texas
(3:96-CV-3190-G)
July 10, 1998
Before POLITZ, Chief Judge, WISDOM, and DUHÉ, Circuit Judges.
JOHN M. DUHÉ, JR., Circuit Judge:1
Petitioner was convicted of murder and sentenced to ninety-
nine years in prison. He files his first federal habeas
application alleging a Brady violation and ineffective assistance
of counsel. We deny the application. There is no Brady violation
because the evidence was not material, and petitioner failed to
1
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
meet his burden in proving ineffective assistance of counsel.
I
In 1984, Paul Debord (“Debord”) and Robert Harris (“Harris”)
paid an early morning visit to the hotel where his acquaintances,
Harold Finch (“Finch”) and Cheryl Knowles (“Knowles”) were living.
Debord began rifling through Finch’s toolbox and then asked Knowles
if she had the fifteen dollars she owed him from some drugs she
bought from him. Debord told Knowles that she owed twenty-five
dollars for being late. At this point Debord’s and Knowles’
account of the facts diverge. Knowles testified that Finch asked
Debord if he always wanted something for nothing, and Debord then
walked over to Finch and threatened to pistol-whip him. Debord
pulled out a gun, cocked it, and pointed it at Knowles, who began
screaming. Debord told her to shut up and walked around to the
table where Finch was sitting in a chair. Debord hit Finch with
the gun twice, but Finch did not resist or say anything. Debord
then raised his arm and brought it down again. Finch put up his
arm to protect himself, and Debord shot Finch in the head. Knowles
further testified that she did not think that the shooting was
accidental.
Debord, on the other hand, testified that the shooting was
accidental. He stated that Knowles started cursing him while he
was looking through the toolbox. Finch was sitting and did not say
anything. Debord started to leave, and Knowles threatened to have
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someone blow Debord’s head off. As a result, Debord came back,
pulled out his gun, pointed it at the floor, cocked it, and told
Knowles to stop threatening him. Debord and Knowles began cursing
each other, and then Finch began saying something. Debord turned
around and made a motion as if to hit Finch with the gun. Finch
then grabbed Debord’s hand and pulled the gun down. Debord tried
to pull back, and the gun fired.
Debord was convicted of murder and sentenced to ninety-nine
years in prison. His conviction was affirmed on direct appeal, and
his four state habeas applications were denied. In this, his first
federal habeas application, Debord raised the following points of
error: 1) the state trial court erred in admitting testimony
regarding extraneous drug offenses; 2) the state trial court erred
in failing to charge the jury on a lesser included offense; 3) the
prosecutor used prejudicial and inflammatory arguments throughout
the guilt/innocence and punishment phases; 4) ineffective
assistance of counsel; and 5) a Brady violation. The district
court denied habeas relief. On appeal, Debord raises the
ineffective assistance of counsel and the Brady violation. All
other issues not briefed on appeal are deemed waived. Cinel v.
Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
II.
Under the Anti-Terrorism and Effective Death Penalty Act, 28
U.S.C. § 2254(d)(1996), a federal court may not issue a writ of
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habeas corpus with respect to any claim that was adjudicated on
the merits in state court unless the adjudication was 1) contrary
to or involved an unreasonable application of clearly established
federal law; or 2) was based on an unreasonable determination of
the facts in light of the evidence presented in the state court
proceeding. Moreover, when the case presents a mixed question of
law and fact, a federal court will grant the writ only if
“reasonable jurists considering the question would be of one view
that the state court proceeding was incorrect.” Drinkard v.
Johnson, 97 F.3d 751, 769 (5th Cir. 1996), overruled in part on
other grounds, Lindh v. Murphy, 117 S. Ct. 2059 (1997).
Finally, we review the district court’s findings of fact for
clear error and its conclusions of law de novo. Lara v. Johnson,
1998 WL 229794 1, 2 (5th Cir. 1998); Moody v. Johnson, 139 F.3d
477, 480 (5th Cir. 1998).
III.
A. BRADY VIOLATION
“Although the State is obligated to disclose evidence to the
defense, the State need not disgorge every piece of evidence in
its possession.” Rector v. Johnson, 120 F.3d 551, 558 (5th Cir.
1997). Rather, under Brady v. Maryland, 373 U.S. 83 (1963), a
prosecutor is required to disclose all exculpatory evidence that
is material to guilt or punishment. Id. at 87. Suppression of
that evidence, irrespective of the prosecutor’s good or bad
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faith, violates due process.
We have held that to state a Brady claim, a defendant must
establish that 1) the prosecutor suppressed evidence; 2) the
evidence was favorable; 3) the evidence was material to guilt or
punishment; and 4) discovery of the allegedly favorable evidence
was not the result of a lack of due diligence. See, Rector, 120
F.3d at 558; Williams v. Scott, 35 F.3d 159, 163 (1994).
Further, evidence is material only if there is “a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. A
‘reasonable probability’ is a probability sufficient to undermine
confidence in the outcome.” United States v. Bagley, 473 U.S.
667, 682 (1985).
The alleged Brady violation concerns the sworn, transcribed
statement Harris made to the police the day of the shooting.
Harris told the police that Debord had pointed his pistol at
Knowles and then walked over to Finch and pointed the gun at him.
Debord told Finch not to say anything about the way in which he
was talking to Knowles. Finch and Debord continued to argue and
Debord went to hit Finch with the pistol. Finch grabbed Debord.
They continued to fight and began to fall. Harris stated that he
got out of the way and then heard a shot. Debord was standing
over Finch, who was seated in a chair.
The magistrate found that there was no Brady violation
because the information in Harris’ statement was known to Debord
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before trial. Because Harris accompanied Debord to the hotel,
Debord knew what Harris saw and heard that day. The magistrate
further found that, even assuming arguendo that Debord did not
have access to the statement before trial, there was still no
Brady violation. Debord was fully aware that Harris had been
present at the scene and could have been called as a defense
witness.2
The magistrate, however, misapprehends the purpose of the
statement. The statement was not valuable to Debord because it
contained any information of which he was not aware; rather, the
statement was important because it tends to corroborate Debord’s
contention that the killing was accidental. Assuming arguendo
the statement would have been admitted, the issue is whether the
statement constitutes material evidence. We hold that it does
not.
As stated above, a reasonable probability is one that is
sufficient to undermine confidence in the outcome. Bagley, 473
U.S. at 682. Here, the statement is both inculpatory and
exculpatory. It corroborates Debord’s testimony that he did not
actually hit Finch, but only went to hit him. It also
corroborates Debord’s testimony that Finch grabbed his arm.
Further, it contradicts Knowles’ story that Finch was merely an
2
We disagree that Harris could have been called as a witness.
The State delayed the trial twice to find Harris and was still
unable to locate him.
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unresisting victim. However, the statement also contradicts
Debord’s testimony that he did not point the gun at anyone but
merely pointed it at the ground.
We cannot say that a jury that heard the statement would not
convict Debord. After all, the statement depicts Debord pointing
the gun at Finch and then moving towards him to hit him with it.
Thus, while the prosecutor probably should have given the
statement over to the defense, the statement was not material
evidence, and there is no Brady violation.
B. EFFECTIVE ASSISTANCE OF COUNSEL
Debord claims that his counsel was ineffective because he
failed to locate either Harris or Harris’ statement to the
police. This claim, too, fails.
To assert a successful ineffectiveness claim, Debord must
show both that his counsel’s performance was constitutionally
deficient and that his counsel’s ineffectiveness resulted in
actual prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984). Failure to prove either element is fatal to the
ineffectiveness claim. Id. To prove the first prong of the
Strickland test, the defendant must prove that counsel’s
representation fell below an objective standard of
reasonableness. Id. at 688. In fact, counsel must have made
errors so serious that counsel was not functioning as the
“counsel” the Sixth Amendment guarantees. Id. at 687.
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“Our scrutiny of counsel’s performance is highly
deferential, and we must make every effort to eliminate the
distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Pitts v. Anderson, 122 F.3d
275, 279 (5th Cir. 1997). Debord merely complains that counsel
failed to find Harris or his statement to the police, and that as
a result, counsel failed to represent him adequately. Such a
complaint is a conclusion of law and does not satisfy Debord’s
heavy burden. Debord fails to explain to this Court what steps
counsel did take, and there is no adequate basis upon which we
may judge his performance; therefore, we affirm the district
court’s dismissal of Debord’s ineffective assistance of counsel
claim.
CONCLUSION
Based on the foregoing reasons, we DENY the petitioner’s
WRIT OF HABEAS CORPUS.
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