Revised September 16, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20624
DAVID EARL GIBBS
Petitioner-Appellant
versus
GARY JOHNSON, Warden, Director,
Texas Department of Criminal Justice
Institutional Division
Respondent-Appellee
Appeal from the United States District Court
For the Southern District of Texas
September 8, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
David Earl Gibbs has been on death row in Texas for the past
twelve years following his conviction by a jury for raping and
cutting the throat of Marietta Bryant in the course of a burglary
of her apartment in Conroe, Texas, on the night of July 1, 1985.
Gibbs also raped and killed Carol Ackland, Ms. Bryant’s roommate
that evening in the apartment, but the state charged only the
assault and death of Marietta Bryant.
Gibbs petitions the federal courts to set aside his conviction
and sentences contending the State of Texas violated his
constitutional rights in two ways: the prosecution failed to
disclose evidence relevant to the jury’s sentencing decision, and
the state trial judge admitted evidence of an offense for which he
had been found innocent. Gibbs also urges that the federal
district court denied Gibbs the opportunity to conduct discovery in
support of his federal habeas petition. The United States District
Court denied relief and refused a certificate of probable cause.
After briefing and oral argument we also refuse the certificate.
I
The Texas Court of Criminal Appeals affirmed Gibbs’s
conviction and sentence on direct appeal, Gibbs v. State, 819
S.W.2d 821 (Tex. Crim. App. 1991), and the Supreme Court denied his
petition for writ of certiorari on February 24, 1995. Judge Olen
Underwood of the 284th District Court, Montgomery County, Texas,
recommended denial of Gibbs’s Second Application for Writ of Habeas
Corpus on July 14, 1995, and Gibbs filed his federal petition three
days later. The federal district court denied relief on May 15,
1997, and refused to issue a certificate of probable cause, but
left its stay of execution in place. Gibbs filed his Application
for Certificate of Probable Cause on November 24, 1997. Briefing
was completed on April 20, 1998, and we heard argument on August
17, 1998.
2
The standard for granting a certificate of probable cause is
whether Gibbs has made a substantial showing that he was denied a
federal right. Barefoot v. Estelle, 463 U.S. 880 (1983). The
AEDPA is not applicable, and we moved to the merits of the appeal
with briefs and oral argument rather than decide the request for a
certificate of probable cause without that assistance. This
insistence on a better look does not necessarily signal probable
cause. Some cases become clear with the benefit of full briefing
and oral argument, leaving the case one about which reasonable
jurists would not differ. This is such a case.
II
-1-
Gibbs’s main contention is that in the punishment phase of
trial the prosecution called Roy Moody, who testified that Gibbs
had assaulted him in their cell, but failed to disclose that prison
officials had dismissed disciplinary charges against Gibbs arising
from the incident. Brady v. Maryland, 373 U.S. 83 (1963), imposes
an affirmative duty to disclose to the defense evidence that is
both favorable to the accused and material either to guilt or to
punishment, including impeachment evidence. See United States v.
Bagley, 473 U.S. 667, 676 (1985).
The principles governing the duty of the prosecutors to
disclose evidence material to the defense, Brady material, are now
easily stated if not always easily applied. Violation of the duty
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to disclose does not turn on good or bad faith. Rather, it is the
character of evidence, not the character of the prosecutor that
matters. See United States v. Agurs, 427 U.S. 97 (1976). A
defendant must show that the withheld evidence could reasonably be
taken to put the case in a different light so as to undermine
confidence in the verdict. Kyles v. Whitley, 514 U.S. 419 (1995).
At the same time, “[t]he mere possibility that an item of
undisclosed information might have helped the defense, or might
have affected the outcome of the trial, does not establish
‘materiality’ in the constitutional sense.” Augurs, 427 U.S. at
109-10. There is no duty to furnish a defendant with exculpatory
evidence that is fully available to the defendant though the
exercise of reasonable diligence. Rector v. Johnson, 120 F.3d 551
(5th Cir. 1997), cert. denied, 118 S. Ct. 1061 (1998). Relatedly,
we have found no constitutional error in failing to disclose
evidence contrary to the prosecutor’s assertions in closing
argument, where the defendant would have known about the “withheld”
evidence. West v. Johnson, 92 F.3d 1385, 1399 (5th Cir. 1996),
cert. denied, 117 S. Ct. 1847 (1997). At the same time, a
prosecutor’s duty to disclose is not defined by his knowledge. It
is no answer that the prosecutor did not know of exculpatory
evidence, even in the hands of another arm of the state. See
United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980).
-2-
4
Moody was not listed as a witness before trial. The
prosecutor first disclosed to the defense and the court that it
intended to call Moody on the morning that he testified. The
prosecutor explained that he had just learned of Moody and had
brought him to trial from the state prison where he was an inmate.
He informed the court that Moody was expected to testify about
Gibbs's assault of him in a jail cell. The trial judge overruled
Gibbs’s objection that the witness had not been previously
disclosed and denied his request to continue the trial long enough
to allow the defense to prepare for the witness. Moody testified
as follows:
Q: Did you have occasion to have any kind of confrontation
or fight with Mr. Gibbs back on January 15th?
A: Yes; we did.
Q: Would you tell the jury in your own words what happened,
please?
A: I asked him to turn his radio down 'cause it woke me up
and he said no, so I unplugged it and that's when he hit
me in this eye and then hit me over here in the ear and
then pounded with both hands on the back of my neck and
choked me and told me he'd kill me.
Q: And, this happened on January 15th?
A: I'm not sure.
Q: Around that time anyway?
A: Yeah.
Q: Had you done anything other than unplug the radio?
A: No; I did not.
Q: Had you and he ever had any problems before?
5
A: No.
Q: Did you ever see the defendant get in a fight or beat up
on anybody else while you were up there in that cell?
A: One other person.
Q: Would you tell the jury what you saw?
A: David jumped across the table and beat the hell out of
that boy.
Defense counsel’s cross examination suggested provocation.
There was no hint that Gibbs acted in self defense. The prosecutor
in his closing argument referred to Moody’s testimony, pointing out
Gibbs’s violent tendencies even in the controlled circumstance of
confinement. It is plain that the prosecutor thought the testimony
helpful to the state's case – given his scramble to produce the
witness in the middle of the sentencing phase and his use of the
testimony in his close.
Nearly a decade later in the course of developing a habeas
petition, defense counsel found in the prosecutor’s files a jail
record (Montgomery County Jail incident report) regarding the
incident bearing the notation “:Dism:Self Defense.” Montgomery
County Sheriff’s Department Officer Jack McKeon, commander of the
jail in 1986 during the time of the incident, made the notation but
later suffered a series of strokes and is unable to testify.
The incident occurred on January 15, 1986, at 5:20. According
to jail records, Gibbs signed an offense report advising, “You are
charged with violation of the Montgomery County Jail Rules 003-
Fighting w/another person.” The notice read:
6
You will appear before the disciplinary committee of the
Montgomery County Jail within Seven (7) but not less than
twenty four (24) hours, to answer to the charges brought
against you.
If found guilty, you have the right to appeal the
decision of the committee in writing to the jail captain.
The jail captain’s decision will be final and returned to
you within ten (ten) days. This appeal must be initiated
within ten (10) days from the date of their decision.
Moody appeared at the punishment phase of the trial on March
19, 1986, long after the disciplinary hearing set for January 22,
1986.
The jail offense report had additional information about the
incident:
On 01.15.86 at approximately 5:20 p.m. I, Sgt. Jones
and Deputy P. Harris were working the 4th floor desk when
I Sgt. Jones heard our medic R. Owens hollar [sic] for
me, Sgt. Jones that there was a fight in L-2. Deputy
Harris being in front of the booking desk was the first
to respond. Upon opening the door to L-2, Deputy P.
Harris found inmate Roy Moody on his hands and knees bent
over with his hands on his head.
After getting coverage at the 4th floor desk I, Sgt.
Jones went upstairs and entered L-2. I found inmate Roy
Moody standing in the corner of the day room. All of L-2
started saying that R. Moody was having a bad dream.
After looking at R. Moody I noticed he had some
redness around the left eye. I pulled R. Moody out of L-
2 and asked him what happened. He said that David Earl
Gibbs had hit him and tried to choke him....I Sgt. Jones
seen [sic] what appeared to be red marks around R.
Moody’s throat and found redness around his left eye. I
asked R. Moody if he wanted to press charges.
-3-
The state called six witnesses in the punishment phase,
including Moody. The witnesses testified that Gibbs bragged about
7
fights he had been in; spent most of his teenage years and adult
life in foster homes, jails, and prisons; had observed his mother
having sexual relations with another woman; and had attempted
suicide. There was testimony that Gibbs was not violent when sober
and liked prison life. Charlie Thomas testified that several weeks
after he fired Gibbs for stealing some checks from his business
Gibbs broke into Thomas’s apartment, found Thomas’s rifle, and
threatened to kill Thomas, although Thomas talked him out of it,
later buying him a beer. The defense called four mitigation
witnesses, including co-workers at a convalescent center who
testified that Gibbs was a good worker and well-mannered. A social
worker testified that Gibbs confided in her that his mother had
taught him to rob and steal as a young boy; that he got along well
in a half-way house such that she let him stay with her family on
occasion.
This summary of the range of evidence before the jury in the
punishment phase of trial affords context for judging the failure
to disclose the record with the notation of dismissal. We begin
and end with the question of materiality. Gibbs fashions his
argument upon a base that will not support it. The contention is
that the notation on the record was information withheld from
Gibbs. Whether or not Gibbs knew of the notation on the record,
and there is no evidence that he did, he certainly knew if he had
been disciplined for the incident. His counsel’s cross examination
never touched self defense and never asked if Gibbs had been
8
disciplined by jail authorities, a fact, if true, also known by
Gibbs.
Significantly, the state did not rely upon a judgment of
conviction or other paper record to prove prior misconduct.
Rather, the state relied upon the testimony of the victim offered
at trial and subject to cross examination by the defendant. The
contention is that Gibbs could have used the notation on the
records to challenge Moody’s version of the fight. But without
Gibbs’s supporting testimony or some explanation of what the
notation meant its value was equivocal at best. The notation is
undated and unsigned. The state trial judge found in collateral
proceedings that the prosecutors who tried the case were unaware of
the notation. It was not until June, 1995, nearly ten years later,
that it was found, apparently by Gibbs’s habeas counsel.
Gibbs never asserted at trial that he acted in self defense.
Indeed, he has yet to do so. Gibbs knew as well as anyone if he
acted in self defense and knew, as we have observed, that no
disciplinary action was even taken against him, if that was the
case. And he knew that disciplinary procedures had been initiated
because he signed the notice of charges. Given its equivocal
meaning, the notation in hand at trial unsupported by other
evidence would be of little assistance, and that is the only
arguably exculpatory evidence not disclosed to him. If he had not
acted in self defense and the notation was inaccurate, offering it
into evidence also would have put the disciplinary proceedings in
9
play, entailing the risk of correcting proof. Finally, the balance
of the report detailed the contemporaneous complaint of Moody. It
supports his trial testimony. This prior consistent statement
would have been admissible on the offer of the state to rebut an
implication of recent fabrication. The contemporaneous complaint
might have been admitted on some other ground. It surely would
have, had the defense attempted to make use of the notation of
dismissal. The point is that in judging the materiality of the
notation we cannot ignore the cross-cutting price of its use by the
defense.
III
Gibbs’s second claim also points to the incident involving
Moody, contending that the state relied upon inaccurate evidence of
a prior offense in violation of the Eight Amendment, a principle
announced in Johnson v. Mississippi, 486 U.S. 578 (1988). In
Johnson the Supreme Court vacated Johnson’s conviction because the
state had relied upon a prior conviction of first-degree rape
reversed after Johnson’s capital trial.
We are not persuaded. In Johnson the invalidated conviction
was the sole evidence of the prior conduct. The court in Johnson
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.
10
IV
Gibbs contends that state and federal courts refused to allow
discovery in support of his habeas petitions contrary to principles
announced in Bracy v. Gramley, 117 S. Ct. 1793 (1997). Bracy did
not lower the gate to discovery in habeas cases. Rather, the Court
applied the standards of Harris v. Nelson, 394 U.S. 286 (1969),
that “where specific allegations before the court show reason to
believe that the petitioner may, if the facts are fully developed,
be able to 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.” Harris, 394 U.S. at 299,
quoted in Bracy, 117 S. Ct. at 1799. Rule 6[a], Rules Governing
Sec. 2254 Cases requires a demonstration of ‘good cause.’ Harris
led to the adoption of Rule 6, and the rule was meant to be
consistent with it, as Chief Justice Rehnquist pointed out in
Bracy. Id. at 1799. He also accented that Bracy had made
“specific allegations” and that the “scope and extent of such
discovery is a matter confided to the discretion of the District
Court.” Id.
Gibbs hoped discovery would develop evidence supporting
claims that the state withheld evidence regarding the background of
Texas Ranger Wesley Styles and that his lawyer was ineffective in
not investigating Styles’ background. Ranger Styles questioned
Gibbs on several occasions and testified at a suppression hearing
regarding Gibbs’s confession. Gibbs testified at the suppression
11
hearing about threats, intimidation, physical abuse, and
psychological coercion Styles is said to have used, including a
promise that he would not pursue capital murder charges if Gibbs
confessed.
First, with regard to the claim that discovery was needed to
develop a possible claim that the government withheld exculpatory
information regarding Ranger Styles, we are pointed to no non-
public information or type of information directly relevant to the
testimony of Styles. His asserted misconduct in other
investigations was widely reported in the press. Regardless, Gibbs
failed to explain the materiality to his case of any such
information.
The state habeas court held that specific instances of Styles'
alleged misconduct were inadmissible under Texas law. As a federal
court in a habeas review of a state court conviction, we cannot
review state rulings on state law that do not present a federal
constitutional question. And the nuances of state rules for
impeaching a witness by prior acts of misconduct do not do so.
Gibbs had the full opportunity to cross examine Styles at the
suppression hearing. As for a possible claim that Gibbs’s counsel
was ineffective, his defense counsel asserted in affidavits that
they knew of allegations concerning Styles in the Brandley case [a
widely reported case of a prisoner ultimately released from the
Texas prison system], but any misconduct would not have been
admissible.
12
Gibbs’s claim ultimately rests on an expansive reading of
Bracy that we cannot embrace. He argues that it is no answer that
the discovery venture rests on speculation, because the purpose of
discovery is just that -- to discover. The argument continues that
while reports about Ranger Styles were public, the defense needed
to nail down witnesses and documents for trial. To what end,
however, Gibbs does not fully answer. The best offered explanation
is a possible development of opinion testimony regarding reputation
for truthfulness or evidence that Styles was guilty of misconduct
in other cases. That speculation about evidence found by the state
court to be likely inadmissible is not enough – at least not for us
to find an abuse of discretion. In sum, we agree with the district
court that Gibbs did not make the kind of particularized
allegations or showing demanded by Bracy. This judgment call by
the district court falls well within its discretion, given the
deference it is due.
We vacate the stay of execution. The application for a
certificate of probable cause is denied.
13