Hill v. Johnson

REVISED MAY 30, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-10801
_____________________

MACK ORAN HILL

Petitioner - Appellant

v.

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
_________________________________________________________________
April 20, 2000
Before KING, Chief Judge, and JOLLY and PARKER, Circuit Judges.

KING, Chief Judge:

As is required under 28 U.S.C. § 2253(c), Texas death row

inmate Mack Oran Hill requests that we grant a certificate of

appealability to enable him to obtain review of the district

court’s denial of habeas relief. For the reasons that follow, we

deny his request.

I. PROCEDURAL BACKGROUND

Following a jury trial, Mack Oran Hill (“Hill”) was

convicted of capital murder on July 7, 1989, and was sentenced to

death on August 3, 1989. The Texas Court of Criminal Appeals
affirmed his conviction and sentence on May 5, 1993. Hill’s writ

of certiorari was denied on June 13, 1994. See Hill v. Texas,

512 U.S. 1213 (1994).

Hill was appointed counsel to represent him in state habeas

proceedings on March 24, 1997. With the permission of the Court

of Criminal Appeals, Hill’s counsel filed in state court on April

11, 1997 a skeletal petition for habeas relief, and filed a

complete petition on December 17, 1997. In the latter petition,

Hill asserted eight grounds for relief. On August 5, 1998, the

state habeas court, which was also Hill’s trial court, held an

evidentiary hearing on Hill’s claim that the district attorney

improperly withheld information as to the existence of a deal for

leniency with several witnesses who testified at Hill’s trial.

Shortly after the conclusion of that hearing, the state court

recommended that relief be denied, and on November 12, 1998

issued its findings of fact and conclusions of law. The Texas

Court of Criminal Appeals denied relief with written order on

February 24, 1999.

Hill’s counsel almost immediately filed a motion for

equitable tolling of the statute of limitations of the Anti-

Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.

L. No. 104-132, 110 Stat. 1214, arguing that the significant

delay in appointing counsel for purposes of Hill’s state habeas

proceedings warranted tolling. The filing of the skeletal

petition had stayed the statute of limitations, see 28 U.S.C.

2
§ 2244(d)(2), but left only 13 days remaining in Hill’s one-year

grace period. See Flanagan v. Johnson, 154 F.3d 196, 200 (5th

Cir. 1998) (applying rule announced in United States v. Flores,

135 F.3d 1000 (5th Cir. 1998), to petitions filed under 28 U.S.C.

§ 2254 and thus allowing prisoners whose convictions were final

before AEDPA’s effective date until April 24, 1997 to file

petitions in federal court). The court denied the benefits of

equitable tolling, but construed Hill’s motion as one for an

extension under 28 U.S.C. § 2263. The court granted an extension

until March 31, 1999.

Hill filed his petition seeking federal habeas relief on

March 30, 1999. He filed motions under 21 U.S.C. § 848(q)(4)(B)

seeking the assistance of a forensic expert (on June 7, 1999),

and of an investigator for discovery purposes (on June 11, 1999),

and under Rule 6 of the Rules Governing Section 2254 Cases

seeking additional discovery (on June 11, 1999). Each of these

motions was denied the same day it was filed. The district court

held on June 11 a hearing regarding Respondent Gary L. Johnson’s

(“Respondent”) June 10 motion for summary judgment, and on July

1, issued its findings of fact and conclusions of law, granted

Respondent’s motion, and entered a judgment dismissing Hill’s

petition with prejudice.

Hill filed a timely notice of appeal. He sought a

certificate of appealability (“COA”) from the district court on

3
June 30, 1999. The district court declined to grant a COA on any

of the issues he raises before us.

II. DISCUSSION

Hill seeks a COA from this court on four issues relating to

his state trial. Hill alleges that the district attorney failed

to reveal implied understandings for leniency between himself and

several witnesses, failed to correct false and misleading

testimony, and failed to disclose impeachment evidence. He also

asserts that his due process and equal protection rights were

violated when the Texas Court of Criminal Appeals failed to

utilize the “reasonable alternative hypothesis” construct for

review of the sufficiency of circumstantial evidence entered

against him, in direct contravention of its own decision to apply

that construct to cases such as his. In addition, Hill

challenges the district court’s denial of his motions requesting

additional discovery, and the assistance of a forensic expert and

of an investigator, and its granting of Respondent’s motion for

summary judgment.

Hill’s petition for federal habeas relief was filed on March

30, 1999, and therefore his case is governed by the provisions of

the AEDPA. See Green v. Johnson, 116 F.3d 1115, 1119-20 (5th

Cir. 1997). Under 28 U.S.C. § 2253(c)(1)(A), Hill must first

obtain a COA before he may obtain appellate review of the

district court’s denial of habeas relief. A COA can issue only

4
if Hill makes a “substantial showing of the denial of a

constitutional right.” Id. § 2253(c)(2). Such a showing

“requires the applicant to ‘demonstrate that the issues are

debatable among jurists of reason; that a court could resolve the

issues (in a different manner); or that the questions are

adequate to deserve encouragement to proceed further.’” Drinkard

v. Johnson, 97 F.3d 751, 755 (5th 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). We resolve

doubts about whether to grant a COA in Hill’s favor, and we may

consider the severity of his penalty in determining whether he

has met his “substantial showing” burden. See Fuller v. Johnson,

114 F.3d 491, 495 (5th Cir.), cert. denied, 522 U.S. 963 (1997).

In assessing whether Hill is entitled to a COA, we must keep

in mind the deference scheme laid out in 28 U.S.C. § 2254(d).

See Trevino v. Johnson, 168 F.3d 173, 181 (5th Cir.), cert.

denied, 120 S. Ct. 22 (1999). Under that scheme, we review pure

questions of law and mixed questions of law and fact under

§ 2254(d)(1), and review questions of fact under § 2254(d)(2),

provided that the state court adjudicated the claim on the

merits. See 28 U.S.C. § 2254(d). The Texas Court of Criminal

Appeals explicitly adopted the findings of fact and conclusions

of law of the trial court, and denied relief. This qualifies as

an “adjudication on the merits.” See Trevino, 168 F.3d at 181;

5
Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998), cert.

denied, 119 S. Ct. 1474 (1999).

As a result, we must defer to the state court unless its

decision “was contrary to, or involved an unreasonable

application of clearly established Federal law, as determined by

the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

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.” Williams v. Taylor, -- U.S.

-- , 120 S. Ct. 1495, 2000 WL 385369, at *28 (2000). Under

§ 2254(d)(1)’s “unreasonable application” language, a writ may

issue “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.” Williams,

2000 WL 385369, at *28. Factual findings are presumed to be

correct, see 28 U.S.C. § 2254(e)(1), and we will give deference

to the state court’s decision unless it “was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” Id. § 2254(d)(2).

A.

In his first challenge, Hill contends that the State

violated the commands of Giglio v. United States, 405 U.S. 150

6
(1972), in failing to reveal implied understandings for leniency

between the district attorney and two witnesses, Danny and Allen

Crawford. The Crawfords testified at Hill’s trial regarding the

removal of property from the shop of the individual Hill was

accused of murdering. That an accused’s constitutional rights

are violated when the State withholds material evidence affecting

the credibility of witnesses is well-established. See, e.g.,

Pyles v. Johnson, 136 F.3d 986, 998 (5th Cir.), cert. denied, 524

U.S. 933 (1998). In general, a petitioner seeking habeas relief

who asserts that the State violated its duty to disclose material

evidence must demonstrate that (1) the prosecution withheld

evidence, (2) the evidence was favorable to the petitioner, and

(3) the evidence was material. See Pyles, 136 F.3d at 998;

Spence v. Johnson, 80 F.3d 989, 994 (5th Cir. 1996). “[E]vidence

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.” United States v. Bagley,

473 U.S. 667, 682 (1985). As the Supreme Court has noted, “[t]he

question is not whether the defendant would more likely than not

have received a different verdict with the evidence, but whether

in its absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.” Kyles v. Whitley,

514 U.S. 419, 434 (1995).

The state habeas court conducted an evidentiary hearing

regarding Hill’s contention that the State withheld evidence of

7
deals for leniency, and reviewed an audio tape that the district

attorney had made of a telephone conversation between himself and

David Schulman, the attorney for Allen Crawford. The court

subsequently denied relief, finding that there were “no deals,

express, implied or otherwise offered to any witness that were

not disclosed to Applicant’s trial attorneys.”

Hill contends that the state habeas court misrepresented and

misapplied the facts brought forth at the evidentiary hearing.

In particular, he argues that the state court relied on the audio

tape and ignored uncontradicted evidence suggesting that the tape

had been altered, and that the court further ignored evidence

that indicates that Allen Crawford and Schulman were led to

believe that some consideration would be given in return for

Crawford’s testimony.

The district court, after reviewing the record, concluded

that, at most, three individuals had a subjective belief that

there was an implied deal, but that the record did not support

the conclusion that the district attorney intended to make, or

actually made, a deal for leniency in exchange for the witnesses’

testimony. The district court also concluded that Hill had not

presented evidence sufficient to rebut the presumption of

correctness a federal court must apply to the state court’s

findings of fact, and that Hill had not shown that the state

court’s conclusions were unreasonable in light of the evidence.

8
 The district court also denied Hill’s request for a forensic

expert to examine the audio tape made by the district attorney,

and his motions for additional discovery and for the appointment

of an investigator. In his latter motions, Hill sought the

transcripts of hearings in another individual’s state habeas

proceedings, which Hill believed contained evidence that the

district attorney maintained a secret file containing possibly

exculpatory information related to capital cases, and that the

contents of that secret file had been destroyed. This evidence,

Hill contended, supported the inference of a continuing pattern

of misconduct on the part of the district attorney. Hill also

wished to interview witnesses from the other individual’s state

habeas hearing regarding facts relating to Hill’s case, or to the

credibility of individuals involved in Hill’s case.

We conclude that Hill has not made a substantial showing of

the denial of a constitutional right. With regard to the state

court’s findings of fact, Hill’s basic argument is that the

court, after granting an evidentiary hearing, “ignored” some

evidence but accepted other evidence. Much is made of Schulman’s

testimony at the evidentiary hearing suggesting that the district

attorney altered the tape recording of a telephone conversation

between the two. However, Hill notes that evidence that the

district attorney altered the tape would go to the district

attorney’s credibility; he does not contend that the tape

contained the district attorney’s admission of the existence of a

9
deal. Given the testimony of other witnesses that there was no

deal, Hill has not come close to rebutting by clear and

convincing evidence the presumption of correctness that we must

accord the state court’s findings. In addition, Hill neither

points to a Supreme Court decision holding that the subjective

beliefs of witnesses regarding the possibility of future

favorable treatment are sufficient to trigger the State’s duty to

disclose under Brady v. Maryland, 373 U.S. 83 (1963), and

Giglio,1 nor gives us cause to believe that the state court’s

conclusions involved an unreasonable application to the facts of

law existing at the time of its decision. Cf. Williams, 2000 WL

385369, at *28 (explaining that “clearly established Federal law,

as determined by the Supreme Court of the United States” “refers

to the holdings, as opposed to the dicta, of [the] Court’s

decisions as of the time of the relevant state-court decision”).

Related to Hill’s Giglio claim is his contention that the

district court abused its discretion in denying his requests

under 21 U.S.C. § 848(q)(4)(B) for assistance of a forensic audio

expert to analyze the district attorney’s tape recording and for

the assistance of an investigator. Under § 848(q)(4)(B)(9), the

1
As Hill observes, the Court’s decision in Giglio
addressed the State’s duty to disclose an express agreement
between the State and a witness. Although we are restricted by
28 U.S.C. § 2254(d)(1) to evaluate the state court’s decision in
light of Supreme Court precedent, we note that this circuit has
held that a witness’ “nebulous expectation of help from the
state” is not Brady material. See Goodwin v. Johnson, 132 F.3d
162, 187 (5th Cir. 1998); United States v. Nixon, 881 F.2d 1305,
1311 (5th Cir. 1989).

10
district court, “[u]pon a finding that investigative, expert, or

other services are reasonably necessary for the representation of

the defendant, . . . . may authorize the defendant’s attorneys to

obtain such services . . . .” To be entitled to the assistance

of a forensic audio expert or an investigator, Hill must show

indigence and that the requested assistance is reasonably

necessary for his representation. See Fuller, 114 F.3d at 502.

We find no abuse of discretion.2 Hill’s request for a

forensic expert is motivated by an attempt to gain additional

evidence supporting Schulman’s suggestion that the district

attorney’s audio tape was altered. Schulman testified at the

state habeas court’s evidentiary hearing that a complete playing

of the tape (i.e., without the alleged editing) would make it

clear that his statements regarding consideration to be given

were true. Schulman did not testify that the district attorney

stated during their phone conversation that there was a deal, and

in fact stated that there was no express deal. His statements

regarding consideration indicated only that when he and Allen

Crawford had left a meeting with the district attorney, they were

under the impression that Crawford would get some unspecified

consideration for his testimony. Thus, the primary evidence that

the forensic expert would be able to supply — i.e., that the tape

was altered — would do nothing to make viable Hill’s Giglio

2
A COA is not required for appeals under § 848(q)(4)(B).
See Sterling v. Scott, 57 F.3d 451, 454 n.3 (5th Cir. 1995).

11
claim. Under these circumstances, the district court did not

abuse its discretion in denying Hill’s request for a forensic

expert.

Also related to Hill’s Giglio claim is his request for a COA

on the district court’s denial of his motion for additional

discovery pertaining to the district attorney’s activities. We

conclude that Hill has not demonstrated that the question whether

the district court abused its discretion in denying this request

is debatable among jurists of reason. In order to be entitled to

additional discovery, Hill must show “good cause.” See Rules

Governing Section 2254 Cases 6(a) (“A party shall be entitled to

invoke the processes of discovery available under the Federal

Rules of Civil Procedure if, and to the extent that, the judge in

the exercise of his discretion and for good cause shown grants

leave to do so, but not otherwise.”). As we recently noted,

“[g]ood cause may be found when a petition for habeas corpus

relief ‘establishes a prima facie [case] for relief.’” Murphy v.

Johnson, 205 F.3d 809, 814 (5th Cir. 2000) (quoting Harris v.

Nelson, 394 U.S. 286, 289 (1969)). In addition, Hill’s factual

allegations must be specific, as opposed to merely speculative or

conclusory, to justify discovery. See Murphy, 205 F.3d at 814.

“Rule 6 . . . does not authorize fishing expeditions.” Ward v.

Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994); see also Murphy, 205

F.3d at 814.

12
 The district court could easily conclude that Hill had not

shown “good cause” for discovery related to the district

attorney’s alleged maintenance and destruction of a secret file.

None of the evidence he seeks can transform Hill’s contention

that parties left a meeting with the district attorney

entertaining the belief that some unspecified consideration may

be forthcoming in the future into a viable claim that the

district attorney withheld from Hill and his counsel information

regarding a deal for leniency in return for witness testimony.

Cf. Murphy, 205 F.3d at 814 (concluding that petitioner had

failed to demonstrate the existence of a deal or that proof of a

deal would be material).3 We therefore decline to issue a COA on

Hill’s Giglio claim, and on the related discovery issue.

B.

Hill’s second and third grounds for relief deal with the

sentencing phase of his trial, and in particular, the testimony

of a psychiatric expert, Dr. James Grigson, regarding the

probability that Hill would in the future be a danger to society.

Before the state habeas court, Hill contended the State withheld

the existence and the contents of the “Kinne Report,” which

purportedly was in the possession of Dr. Grigson and described

the conduct of individuals whom he had testified would “with

3
As a result, we find as well that the district court did
not abuse its discretion in denying the assistance of an
investigator.

13
certainty” be future dangers. The Report purportedly indicated

that those individuals whose sentences were commuted to life

imprisonment were model, or at least well-adapted, prisoners.

Hill contended that, had he had been given the Report, he could

have used it to impeach Dr. Grigson’s testimony regarding his

predictions of future dangerousness.

Hill charges the State with both the failure to provide him

with the Kinne Report in violation of Brady v. Maryland, 373 U.S.

83 (1963), and failure to correct false and misleading testimony

given by Dr. Grigson about the accuracy of his predictions in

violation of Napue v. Illinois, 360 U.S. 264 (1959). We have

indicated above what Hill must prove in order to establish a

Brady violation. In order to show that the State failed to

correct false and misleading testimony, Hill must demonstrate

that (1) “‘the testimony was actually false,’” (2) “‘the state

knew it was false,’” and (3) “‘the testimony was material.’”

Pyles, 136 F.3d at 996 (quoting Faulder v. Johnson, 81 F.3d 515,

519 (5th Cir. 1996)).

The state habeas court did not conduct an evidentiary

hearing on these issues. It found that the State had no

knowledge of the Kinne Report at the time of Hill’s trial, that

the Kinne Report was “nothing more than a list of a certain

number of inmates from Dallas County and a report of their

conduct while in prison,” that the letter did not contain

information that made Dr. Grigson’s predictions more or less

14
probable, that Dr. Grigson was not an “arm of the prosecution,”

and that the defense’s expert ably impeached Dr. Grigson’s

testimony. The state court concluded that Hill’s claims were not

supported by credible evidence in the record, or by evidence

submitted to the state habeas court.

The district court concluded that Hill’s claims failed

because he had not demonstrated that (1) Dr. Grigson’s testimony

was perjured, (2) the Kinne Report was in possession of Dr.

Grigson or the prosecution, and (3) the Kinne Report was

unattainable through reasonable diligence. In Hill’s discovery

motion, he stated he was requesting additional discovery in part

to obtain information related to his second and third claims.

That information regarded when Dr. Grigson became aware of the

contents of the Kinne Report, whether he communicated the

contents to members of the district attorney’s office, and the

nature of the relationship between Dr. Grigson and that office.

As we noted above, the district court denied his motion.

Beyond arguing that the state court’s findings are not

deserving of the statutory presumption of correctness, Hill’s

challenge to the state court’s action focuses on its application

of law underlying its finding that Dr. Grigson was not an “arm of

the state,” and its conclusion that the Kinne Report was not

“impeachment” evidence.4 We begin with an assessment of Hill’s

4
Hill also attacks the state court’s “alternative”
conclusion that Hill’s claims were disposed of by Clark v. State,
881 S.W.2d 682, 687 (Tex. Crim. App. 1994). We find we do not

15
contention that the state habeas court’s finding that Dr. Grigson

was not an “arm of the prosecution” reflected an improper

application of law to the facts. Hill relies principally on the

Supreme Court’s description of Dr. Grigson’s role in Estelle v.

Smith, 451 U.S. 454, 467 (1981) (“When Dr. Grigson went beyond

simply reporting to the court on the issue of competence and

testified for the prosecution at the penalty phase on the crucial

issue of respondent’s future dangerousness, his role changed and

became essentially like that of an agent of the State recounting

unwarned statements made in a postarrest custodial setting.”), to

support his challenge to the state court’s finding. Hill

interprets the Court’s language as suggesting that when Dr.

Grigson testifies as to an individual’s future dangerousness, he

is necessarily an agent of the State. This is not what the

Supreme Court held. Moreover, Hill has given us no reason to

believe that his case was factually similar to that of the

defendant in Smith.5 We therefore conclude that the Court’s

language in Smith is not applicable to Hill’s case.

need to address these arguments.
5
Unlike the situation in Smith, the record does not reveal
that Hill was examined by Dr. Grigson prior to his giving
testimony, or that Dr. Grigson’s testimony as to his predictions
of Hill’s future dangerousness was based on any examination of
Hill. Instead, Dr. Grigson was given a hypothetical, and asked
for his assessment of the likelihood that the individual
described in the hypothetical would be a continuing threat to
society.

16
 With no other basis for challenging the state habeas court’s

finding that Dr. Grigson was not an arm of the prosecution, Hill

cannot meet his burden of making a substantial showing of a

denial of a constitutional right. Hill contends that the state

court’s findings should not be presumed correct because the state

court denied him an evidentiary hearing. However, we have

frequently noted that the absence of an evidentiary hearing at

the state level does not lead to the conclusion that the state

court’s findings should not be presumed correct. See, e.g.,

Carter v. Johnson, 131 F.3d 452, 460 n.13 (5th Cir. 1997) (“We

have consistently recognized that, to be entitled to the

presumption of correctness, a state court need not hold an

evidentiary hearing . . . .”), cert. denied, 523 U.S. 1099

(1998). As we recently observed, this court has “repeatedly

found that a paper hearing is sufficient to afford a petitioner a

full and fair hearing on the factual issues underlying his

claims, especially where . . . the trial court and the state

habeas court were one and the same.” Murphy, 205 F.3d at 816

(citing Perillo v. Johnson, 79 F.3d 441, 446-47 (5th Cir. 1996)).

Hill was given an opportunity during the state habeas

proceedings to provide evidence supporting any allegation he may

have made that the State (as distinguished from Dr. Grigson)

possessed the Kinne Report, or knew of its existence and

contents, and to argue that the Report was material, i.e., that

in its absence, he did not receive “a fair trial, understood as a

17
trial resulting in a verdict worthy of confidence.” Kyles v.

Whitley, 514 U.S. 419, 434 (1995). The state court found that

the State did not have knowledge of the Kinne Report at the time

of Hill’s trial, and that even without that Report, defense

counsel ably impeached Dr. Grigson’s testimony.

Hill attempted to gain evidence rebutting these findings

through additional discovery. However, his request for

additional discovery indicates that he had no evidence supporting

knowledge on the part of the State (as distinguished from Dr.

Grigson) while before the district court.6 In a previous case,

we concluded that “[m]ere speculative and conclusory allegations

that the [State] might have known about [the alleged impeachment

material] are not . . . sufficient to entitle [a petitioner] to

discovery . . . .” East v. Scott, 55 F.3d 996, 1003 (5th Cir.

1995); see also Murphy, 205 F.3d at 814. We conclude that Hill

has not shown that jurists of reason would find debatable the

question whether the district court abused its discretion in

denying Hill’s request for additional discovery. We must

therefore decline his request for a COA on his second and third

grounds for relief.

C.

6
The state court’s conclusions of law regarding Hill’s
Brady claim also suggest that Hill produced no evidence
indicating that the State had prior knowledge of the Kinne
Report.

18
 Hill next challenges the Texas Court of Criminal Appeals’

failure to apply the “reasonable alternative hypothesis” in its

review of the sufficiency of circumstantial evidence in his case.

He argues that this failure constituted a violation of his due

process and equal protection rights under the U.S. Constitution

because the Court of Criminal Appeals had stated in Geesa v.

State, 820 S.W.2d 154, 165 (Tex. Crim. App. 1991), that the

“reasonable alternative hypothesis” standard would be applied in

cases pending appeal at the time. His was such a case.

The state habeas court did not conduct an evidentiary

hearing on this claim. It found that the changes implemented by

Geesa were “procedural in nature and do not implicate any

constitutional rights,” using language from Geesa in support.

See 820 S.W.2d at 163 (“The rules are not of constitutional

dimension per se; rather, the rules serve to implement the

constitutional requirement that a criminal conviction cannot

stand except upon proof beyond a reasonable doubt.” (internal

quotation marks omitted)). The state court concluded that all

defendants were treated equally because in all cases, the State

had to prove guilt beyond a reasonable doubt. The district court

essentially came to the same conclusions.

Hill contends that the state habeas court misconstrued his

claim as one challenging the sufficiency of the evidence. He

asserts that instead his claim is that the Texas Court of

Criminal Appeals’ Geesa decision created a classification of

19
appellants, and gave those appellants whose cases were tried

before Geesa a protected interest. The Court of Criminal

Appeals’ failure to apply the reasonable alternative hypothesis

construct deprived him of his right to treatment equal to that

given similarly situated individuals whose claims were reviewed

under the reasonable alternative hypothesis standard, and

deprived him of his due process rights because the Court of

Criminal Appeals failed to follow its own precedent.

We are not persuaded that the state habeas court incorrectly

interpreted Hill’s claims. At the heart of those claims is the

contention that the state court’s failure to follow its own rules

regarding the analysis it would undertake in reviewing a case on

appeal violated the U.S. Constitution. Even if we assume that

the “reasonable alternative hypothesis” analysis was an explicit

procedural protection and that the Court of Criminal Appeals did

not apply that analysis to Hill’s case, we must deny a COA on

this issue.

Notably, Hill does not assert that the analysis the Texas

Court of Criminal Appeals applied to his case violates the Due

Process Clause. See Murphy v. Collins, 26 F.3d 541, 543 (5th

Cir. 1994) (noting that a state’s failure to follow its own rules

does not violate the Constitution where “‘constitutional minima

[have] nevertheless . . . been met’”) (quoting Jackson v. Cain,

864 F.2d 1235, 1251 (5th Cir. 1989)). Thus, his argument focuses

on the mere failure of the state court to follow the rule

20
applicable to pending cases that it devised in Geesa. Although

Hill relies heavily on Supreme Court cases to support his

contention that his rights under the U.S. Constitution have been

violated, none of the cases he cites provides the rule that he

needs to prevail: that a state court’s failure to follow its own

holding and apply one procedural rule rather than another

constitutes, by itself, a violation of the Due Process Clause.7

We conclude that Hill has not met his burden of making a

substantial showing of a denial of a constitutional right.

The “reasonable alternative hypothesis” analysis merely

provided a reviewing court with a means to assess whether a

rational trier of fact could find the defendant guilty beyond a

reasonable doubt. See Butler v. State, 769 S.W.2d 234, 238 n.1

(Tex. Crim. App. 1989) (“[W]e do not mean to imply an adoption of

[the reasonable hypothesis theory] as the standard of review for

the sufficiency of the evidence. The reasonable hypothesis

theory as utilized by this Court is merely an analytical

construct to facilitate the application of the [Jackson v.

Virginia, 443 U.S. 307 (1979)] standard.”). Even if the Texas

Court of Criminal Appeals did not apply the construct it

indicated in Geesa it would to a case such as Hill’s, and in

doing so, violated “the law,” this was a violation of state law.

7
We have previously held that the type of claim Hill makes
lacks merit. See, e.g., Giovanni v. Lynn, 48 F.3d 908, 912 (5th
Cir. 1995) (“Mere failure to accord the procedural protections
called for by state law or regulation does not of itself amount
to a denial of due process.”).

21
The Supreme Court has repeatedly stated that such a violation is

not the concern of a federal habeas court. See, e.g., Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991) (“[W]e reemphasize that it is

not the province of a federal habeas court to reexamine state-

court determinations on state-law questions. In conducting

habeas review, a federal court is limited to deciding whether a

conviction violated the Constitution, law, or treaties of the

United States.”). Because Hill’s claims regard, at best, a

state-law violation, we must deny a COA.

D.

In his final challenge, Hill contends that the district

court erred in granting summary judgment without giving him an

adequate opportunity for discovery and factual development of his

claims. Given our disposition of his other claims, we deny a COA

on this issue as well.

III. CONCLUSION

For the foregoing reasons, we DENY Hill’s request for a COA.

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