United States Court of Appeals
Fifth Circuit
F I L E D
REVISED DECEMBER 8, 2004
December 7, 2004
In the Charles R. Fulbruge III
Clerk
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-11194
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BRUCE CARNEIL WEBSTER,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 4:00-CV-1646-Y
_________________________
Before SMITH, WIENER, and BARKSDALE, court, which granted a COA on two issues,
Circuit Judges. deemed unworthy of collateral review. Be-
cause Webster has failed to make a substantial
JERRY E. SMITH, Circuit Judge: showing of the denial of a constitutional right,
we deny his application.
Bruce Webster requests a certificate of ap-
pealability (“COA”) for issues the district I.
In 1996, a federal jury convicted Webster
of, and sentenced him to death for, three of- by the district court.3
fensesSSkidnaping resulting in death, conspir-
ing to kidnap, and using and carrying a firearm II.
during a crime of violenceSSfor his role in the A defendant may not appeal a final order in
shocking and exceedingly brutal kidnaping, a § 2255 proceeding unless a circuit justice or
rape, and murder of sixteen-year-old Lisa judge issues a COA. See 28 U.S.C. § 2253(c)-
Rene.1 We affirmed the conviction and sen- (1)(B). To obtain a COA, Webster must make
tence on direct appeal, see United States v. a “substantial showing of the denial of a con-
Webster, 162 F.3d 308 (5th Cir. 1998), cert. stitutional right.” 28 U.S.C. § 2253(c)(2).4
denied, 528 U.S. 829 (1999). He must demonstrate that “jurists of reason
could disagree with the district court’s reso-
In September 2000 Webster filed a motion lution of his constitutional claims or that jurists
to vacate his conviction and sentence pursuant could conclude the issues presented are ade-
to 28 U.S.C. § 2255, and an amended § 2255 quate to deserve encouragement to proceed
motion challenging his conviction and sentence further.” Miller-El, 537 U.S. at 327 (citing
on sixteen grounds in August 2002. The Slack, 529 U.S. at 484).
district court rejected Webster’s claims and
dismissed his petition. See Webster v. United In determining whether to grant a COA, we
States, No. 4:00-CV-1646-Y, 2003 WL are limited “to a threshold inquiry into the un-
23109787 (N.D. Tex. Sept. 30, 2003). derlying merit of [Webster’s] claims.” Id.
“This threshold inquiry does not require full
Webster subsequently filed (in the district consideration of the factual and legal bases ad-
court) an application for a COA on all grounds duced in support of the claims.” Id. at 336.
raised in his § 2255 motion. In January 2004, Instead, our determination is based on “an
the district court issued a COA limited to overview of the claims in the habeas petition
Webster’s claims that (1) his mental retarda- and a general assessment of their merits.” Id.
tion renders him ineligible for the death penalty In death penalty cases, “any doubts as to
and (2) the evidence was insufficient to war- whether a COA should issue must be resolved
rant the finding t hat he is not mentally re- in [petitioner’s] favor.” Hernandez v. John-
tarded.2 Webster thereafter filed the instant son, 213 F.3d 243, 248 (5th Cir. 2000).
application with this court expressly limited (as
is the government’s brief in opposition) to
requesting a COA on the issues not certified
1
The facts are set forth in detail in United
States v. Webster, 162 F.3d 308, 317-19 (5th Cir.
3
1998). See United States v. Kimler, 150 F.3d 429,
431 & n.1 (5th Cir. 1998) (stating that defendant
2
Although the claims on which the district court must expressly seek COA on additional issues not
granted a COA are not presently before us, we note certified by district court).
that Webster’s claim that the evidence at trial was
4
insufficient to warrant the district court’s finding See Miller-El v. Cockrell, 537 U.S. 322, 327
that he is not mentally retarded was raised and (2003); Slack v. McDaniel, 529 U.S. 473, 483
rejected on direct appeal. See id. at 352-53. (2000).
2
III. lenged this finding on direct appeal, claiming
A. that the statutory scheme precluded factfinding
Before the jury retired for deliberations at by the court absent the defendant’s motion,
the penalty phase, the district court excused and that the court acted without notice,
juror Albert Fox and elevated an alternate. thereby depriving him of due process. Re-
Webster alleges that the court committed con- viewing the statutory challenge for plain error
stitutional error in replacing the dismissed jur- as a result of Webster’s failure to object, and
or with an alternate. Because this claim was the due process claim de novo, we rejected
raised and rejected on direct appeal, see Web- both claims. See Webster, 162 F.3d at 351-52.
ster, 162 F.3d at 345-47, the district court
properly held that Webster was barred from Relying on Apprendi v. New Jersey, 530
raising it on collateral review.5 We therefore U.S. 466 (2000), and Ring v. Arizona, 536
deny a COA on this issue. U.S. 584 (2002), Webster sought habeas relief,
asserting that he has a due process right to
B. have the jury make the determination as to re-
After imposing a death sentence on the ver- tardation.7 The district court denied relief,
dict, the district court entered a factual finding concluding that Apprendi does not retroactive-
that Webster is not mentally retarded and is ly apply to initial habeas petitions under
therefore not immune from the death penalty § 2255 and that the absence of mental retarda-
under 18 U.S.C. § 3596(c).6 Webster chal tion is not an element of the sentence constitu-
tionally required to be found by the jury.
5
Webster seeks a COA on this claim.
See, e.g., United States v. Kalish, 780 F.2d
506, 508 (5th Cir. 1986) (“It is settled in this Cir-
Webster has not made the requisite showing
cuit that issues raised and disposed of in a previous
of the denial of a constitutional right in this
appeal from an original judgment of conviction are
not considered in § 2255 motions.”); United States instance. As an initial matter, the procedural
v. Rocha, 109 F.3d 225, 229 (5th Cir. 1997). rule announced in Apprendi is not retroactively
applicable to initial habeas petitions under §
6
The district court’s factual finding, entitled
Factual Finding Regarding Mental Retardation,
states, “Webster is not mentally retarded and . . . 6
(...continued)
he possesses the requisite mental capacity to un- person.
derstand the death penalty and why it will be im-
7
posed on him. As a result, the defendant Webster In Apprendi, 530 U.S. at 490, the Court held
is not exempt under 18 U.S.C. § 3596(c) from im- that “any fact [other than the fact of a prior convic-
plementation of the death penalty.” Section tion] that increases the penalty for a crime beyond
3596(c) provides: the prescribed statutory maximum must be submit-
ted to a jury and proved beyond a reasonable
A sentence of death shall not be carried out up- doubt.” In Ring, 536 U.S. at 589, the Court ex-
on a person who is mentally retarded. A sen- tended the rule announced in Apprendi to capital
tence of death shall not be carried out upon a cases: “Capital defendants, no less than noncapital
person who, as a result of mental disability, defendants, we conclude, are entitled to a jury de-
lacks the mental capacity to understand the termination of any fact on which the legislature
death penalty and why it was imposed on that conditions an increase in their maximum punish-
(continued...) ment.”
3
2255. See United States v. Brown, 305 F.3d (1) Counsel failed to investigate and pres-
304, 309 (5th Cir. 2002). Although this court ent additional evidence demonstrating men-
has yet to determine whether Ring applies tal retardation and the extreme abuse Web-
retroactively, because “the rule in Ring is ster suffered as a child;
essentially an application of Apprendi, logical
consistency suggests that the rule announced (2) Counsel failed to investigate and pres-
in Ring is not retroactively applicable.” In re ent (for purposes of mitigation and im-
Johnson, 334 F.3d 404, 405 n.1 (5th Cir. peachment) evidence of racial discrimina-
2003).8 tion in Webster’s Arkansas school district;
Even assuming arguendo that Ring applies (3) Counsel allowed a “breakdown in com-
retroactively, “neither Ring [nor] Apprendi . . . munication and a dispute over money with
render[s] the absence of mental retardation the the mitigation specialist” to affect the sen-
functional equivalent of an element of capital tencing phase of trial; and
murder which the state must prove beyond a
reasonable doubt.” Id. at 405 (emphasis add- (4) Counsel failed to object to the district
ed).9 Thus, because Apprendi does not apply court’s factual finding regarding mental
retroactively to Webster’s initial § 2255 mo- retardation.
tion, and Ring, even if retroactive, does not
render the absence of mental retardation an el- To make a substantial showing of the denial
ement of the sentence that is constitutionally of his Sixth Amendment right to reasonably
required to be determined by a jury, Webster effective assistance of counsel, Webster must
has failed to make the requisite showing. We satisfy Strickland v. Washington, 466 U.S. 668
deny a COA on this issue. (1984). Thus, he must demonstrate “that
counsel’s performance was deficient,” id. at
C. 687, and that “the deficient performance pre-
Webster contends that his trial counsel pro- judiced . . . [his] defense,” id.
vided ineffective assistance of counsel under
the Sixth Amendment. He alleges the follow- To establish deficient performance, a peti-
ing specific deficiencies: tioner “must show that counsel’s representa-
tion fell below an objective standard of reason-
ableness.” Id. at 687-88. Judicial scrutiny of
counsel’s performance must be “highly deferen-
8
See also Ring, 536 U.S. at 620-21 (O’Connor, tial,” id. at 689, and we must make every
J., dissenting) (opining that Ring’s impact would effort “to eliminate the distorting effects of
be reduced by Teague’s non-retroactivity princi- hindsight, to reconstruct the circumstances of
ple). See Teague v. Lane, 489 U.S. 288 (1989). counsel’s challenged conduct, and to evaluate
9
See also Ring, 536 U.S. at 609 (noting that
the conduct from counsel’s perspective at the
jury finding is constitutionally required for aggra- time,” id. There is a “strong presumption that
vating factors that operate as “the functional equiv- counsel’s conduct falls within the wide range
alent of an element of a greater offense”); Johnson, of reasonable professional assistance.” Id.
334 F.3d at 405 (“[T]he absence of mental retarda-
tion is not an element of the sentence any more than To establish prejudice, a petitioner “must
sanity is an element of an offense.”).
4
show that there is a reasonable probability expert on surrebuttal to critique the methodol-
that, but for counsel’s unprofessional errors, ogy used by one of the government’s experts
the result of the proceeding would have been in testing Webster’s cognitive abilities.
different. A reasonable probability is a proba-
bility sufficient to undermine confidence in the Moreover, counsel presented substantial
outcome.” Id. at 694. The district court’s evidence of the abuse Webster suffered as a
denial of relief is not debatable among jurists child, including testimony from his mother,
of reason, even on threshold review, so we two of his brothers, two of his sisters, an aunt,
deny a COA on these claims. a niece, and an ex-girlfriend. All of these wit-
nesses testified about the severe physical and
1. sexual abuse that Webster’s father inflicted on
Webster contends that his trial counsel his children and his wife (Webster’s mother).
were ineffective in failing to investigate and
present additional mitigating evidence demon-
strating mental retardation and the extreme 10
(...continued)
abuse he suffered as a child. The district court tified that he had examined Webster on two oc-
denied habeas relief, characterizing this inef- casions, first in 1995 and again immediately pre-
fective assistance claim as one of degreeSSi.e., ceding trial, and believed him to be mildly retarded
Webster does not allege that counsel utterly or in what he termed the educable range of the
failed to present evidence of mental retardation mentally retarded. Denis Keyes, a certified school
and child abuse but, instead, that counsel were psychologist, a Ph.D. in special education, and a
ineffective for failing to investigate and present professor of special education at the College of
Charleston, testified that, based on Webster’s
enough of such evidence. After engaging in an
scores on I.Q. and adaptive skills tests, he believed
exhaustive review of the trial record, the Webster to be mentally retarded. Mark Cun-
district court determined that defense counsel ningham, a clinical and forensic psychologist,
presented a significant amount of such evi- testified that he had examined Webster and had
dence; and, although more of the same or diagnosed him with several psychological disor-
similar evidence could have been furnished, ders, including mild variety mental retardation,
counsel were not constitutionally ineffective anti-social personality disorder, and a non-specific
for failing to present more of the same. personality disorder involving narcissistic and
dependant features.
Indeed, our review of the trial record con-
firms that Webster’s counsel were far from Robert Fulbright, a clinical neuropsychologist,
constitutionally ineffective in investigating and testified at length about the battery of tests he had
presenting evidence of his mental condition administered to Webster, measuring numerous
and the abuse he suffered as a child. During cognitive functions, including, inter alia, Web-
ster’s attention; concentration; flexibility of
the punishment phase, counsel presented
thought; problem-solving skills; language function-
lengthy and detailed testimony from four ing; academic abilities; selected sensory and motor
medical experts regarding Webster’s mental functioning; visual-facial skills; and verbal and
capacity10 and the testimony of a fifth medical visual memory. Fulbright stated that Webster’s
test results indicated significant deficits in cognitive
functioning consistent with a finding of mental
10
Raymond Finn, a clinical psychologist, tes- retardation (or someone who had suffered some
(continued...) type of organic brain injury).
5
These witnesses recounted graphic and violent portion of the Washington inquiry.12 We deny
stories of sexual abuse; weekly beatings with a COA on this ineffective assistance claim.
hoses, fan belts, and extension cords; and vari-
ous other forms of torture, including electric 2.
shock and burning. Even further, counsel pre- Webster faults his trial counsel for failing to
sented testimony from an officer of the juve- investigate and present evidence of racial
nile court in Arkansas that removed one of discrimination allegedly existing in the district
Webster’s siblings from the home because of where he attended school. Webster claims it is
abuse. vitally important for counsel to demonstrate
that the reason he was not enrolled in special
In light of this substantial body of evidence education courses was the district’s racially
and the pre-trial investigation its presentation discriminatory practice of not placing black
required, Webster’s generalized allegation that students in such courses even when necessary,
more evidence of mental retardation and child and not because he did not qualify. Had such
abuse should have been presented is arguably evidence been presented, Webster contends, it
frivolous. In any event, it is insufficient to would have effectively countered the govern-
demonstrate objectively deficient performance ment’s assertion that he is not mentally re-
by counsel.11 Because Webster has failed to tarded.
make the requisite showing of deficient per-
formance, we need not address the prejudice In denying habeas relief, the district court
concluded that Webster had failed to establish
either prong of the Washington standard on
this claim. Significantly, the court disagreed
11 with Webster about the salience of the evi-
See, e.g., Dowthitt v. Johnson, 230 F.3d 733,
743 (5th Cir. 2000) (stating that the deferential dence. First, the court observed that the gov-
review mandated by Washington requires courts to ernment disputed Webster’s claim of mental
be “particularly wary” of claims that counsel failed retardation primarily through the testimony of
to present “enough” evidence on a certain issue); its medical experts, cross-examination of
Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir.
1999) (“Did counsel investigate enough? Did
12
counsel present enough mitigating evidence? See, e.g., Dowthitt, 230 F.3d at 745 (assum-
Those questions are even less susceptible to judi- ing, arguendo, deficient performance and rejecting
cial second-guessing.”); Prejean v. State, 889 F.2d ineffective assistance claim on prejudice grounds)
1391, 1398–99 (5th Cir. 1990) (“Although it is (citing Buxton v. Lynaugh, 879 F.2d 140, 142 (5th
possible that [trial counsel] could have produced Cir. 1989) (“[Washington] allows the habeas court
more of the same type of [mental capacity] evi- to look at either prong first; if either one is found
dence . . . such detail is not required by [Washing- dispositive, it is not necessary to address the
ton].”); see also Wilson v. Ozmint, 352 F.3d 847, other.”)); Murray v. Magio, 736 F.2d 279, 282
861–62 (4th Cir. 2003) (finding counsel’s decision (5th Cir. 1984) (“[I]n addressing [an ineffective
not to present additional mitigating evidence rea- assistance] claim, we need not approach the inquiry
sonable in light of counsel’s belief that “their best in any particular order or even address both stages
mitigation evidence had been presented,” and “that of the inquiry if an insufficient showing is made as
the additional evidence would only have detracted to one. A claim may be disposed of for either
from the power of the mitigation evidence that they reasonable performance of counsel or lack of
had already presented”). prejudice, without addressing the other.”).
6
Webster’s medical experts, and the testimony different.14 We therefore deny a COA on this
of other witnesses familiar with Webster both ineffective assistance claim.
in and out of the prison system. Thus, al-
though certain government witnesses noted 3.
the fact that Webster was not in special educa- Webster contends that his trial counsel
tion courses, this point was merely incidental were ineffective in allowing a breakdown in
to the government’s case.13 communication and a dispute over fees with
the mitigation specialist to affect the investi-
Second, the district court noted that Web- gation and presentation of mitigating evidence.
ster’s brother Mark testified that most of his Although the factual basis underlying this
brothers were in special education classes, and claim differs from his other ineffective assis-
Tony Webster acknowledged that he was in tance claims, the substance of the claim re-
“resource” classes. Surmising that any evi- mains the same: But for this “breakdown,”
dence that the school district did not place additional mitigating evidence of mental retar-
black students in special education classes dation, child abuse, and racial discrimination in
when necessary would have been countered by school could have been discovered and pre-
such testimony, the court concluded that coun- sented.
sel could not be faulted for failing to pursue
this track. Webster’s vague and generalized allega-
tions of additional (unspecified) evidence of
Even assuming arguendo that counsel’s retardation and extreme child abuse notwith-
failure to investigate and present such evidence standing, defense counsel presented substantial
constitutes objectively deficient performance, quantities of mitigating evidence concerning
the district court’s conclusion that Webster retardation and child abuse.15 Webster cannot,
cannot demonstrate the requisite prejudice is
not debatable. Indeed, in rejecting Webster’s
claim on direct appeal that the evidence was 14
See Washington, 466 U.S. at 694 (explaining
insufficient to warrant the conclusion that he that the prejudice standard requires demonstration
was not mentally retarded, this court noted that, but for challenged performance, “result of the
that “[t]he government presented substantial proceeding would have been different”).
evidence to support the finding.” Webster,
15
162 F.3d at 353 (emphasis added). Conse- The jury’s findings on the statutory and non-
quently, the incremental impeachment value, if statutory mitigating factors proposed by defense
any, of such evidence does not raise a reason- counsel demonstrate the point: All twelve jurors
able possibility that, had the evidence been found that Webster “suffered from physical abuse,
presented, the outcome would have been emotional abuse, and/or parental neglect during his
upbringing”; six jurors found that he “grew up in
an atmosphere of violence and fear, which has
misshaped his perception as to the acceptability or
13
E.C. Turner, Linda Monk, and Pat Drewett, necessity of violent conduct”; four jurors found
a counselor and two teachers, respectively, from that he “is or may be mentally retarded” and “has
the junior high school Webster attended, testified low intellectual functioning”; four jurors found that
that, in their opinion, Webster was not mentally his level of participation in the commission of the
retarded, and noted that he was not in special ed- offense “was attributable, at least in part, to the
ucation classes. (continued...)
7
therefore, on threshold review, establish either § 3596(c).17 Thus, there was no legal basis on
deficient performance or prejudice for this which trial counsel could conclude (or even
claim. We therefore deny a COA on this suspect) that the court had committed error.18
ineffective assistance claim.
17
4. See Webster, 162 F.3d at 351 (“Webster
Webster claims ineffective assistance from alleges the factual finding was in contravention of
counsel’s failure to object to the district the [Federal Death Penalty Act’s] statutory
court’s factual finding, discussed above, that scheme, but the statute fails to address how to
ensure that the mandate of § 3596(c) is carried
he is not mentally retarded and thus is not ex-
out.”); id. (noting that “[b]ecause the statute fails
empt from the death penalty under § 3596(c).
to provide guidance, and no case has addressed this
The district court disagreed, concluding that issue, the law is not pellucid”); id. at 352 (“The
counsel’s failure to object to the finding cannot statutory scheme simply does not answer who
be deemed ineffective assistance when it was decides this issue . . . .”).
not evident, based on the law at the time, that
18
a potential error had occurred. We suppose that trial counsel could have ad-
vanced the statutory argument Webster made on
At the time of trial (which is what matters direct appealSSnamely, that § 3593(b)(3), which
when assessing counsel’s performance), 16 there provides that the court will act as a fact-finder “up-
was no law on who has the authority to de- on the motion of the defendant and with the ap-
cideSScourt or jurySSwhether a defendant is proval of the attorney for the government,” pre-
mentally retarded within the meaning of cludes any fact-finding by the court absent a mo-
tion by defendant. On direct appeal, however, we
rejected this argument, noting that this provision
refers “only to the determination of the sentence,
Webster, 162 F.3d at 351, and “in no way implies
15 that all court fact-finding must be on the defen-
(...continued)
influence of one or more of the other participants dant’s motion,” id. at 351-52.
involved in the commission of this crime”; all but
one of the jurors found that he “has the love and Trial counsel might also have advanced the oth-
support of his family”; four jurors found that other er argument made by Webster on direct appeal:
defendants, “equally culpable in the crime, will not that in the absence of a specific statutory scheme,
be punished by death”; and two jurors found that the only logical conclusion is that the jury must be
Webster “would likely adapt to prison life if he the fact-finder on the issue of mental retardation.
were sentenced to life imprisonment,” and “can be Here again, however, we rejected this self-styled
controlled in a prison setting.” See Webster, 162 “logical” argument, noting that it “suffers from
F.3d at 319-20 n.2. In fact, defense counsel pre- gaps in reasoning.” Id. Thus, even these argu-
sented expert testimony to the point that the district ments, which are based not on any clearly estab-
court decided to limit Webster’s surrebuttal on lished law, but rather on inferences from the pres-
cumulativeness grounds. See id. at 350-51 (re- ence and absence other statutory provisions, were
jecting due process challenge to this limitation). deemed meritless on direct appeal, and thus trial
counsel’s failure to raise them cannot form the
16
See, e.g., Lucas v. Johnson, 132 F.3d 1069, basis of a finding of ineffective assistance of coun-
1078 (5th Cir. 1998) (“The determination whether sel. See, e.g., Kimler, 167 F.3d at 893 (reasoning
the performance of counsel was deficient is based that attorney’s failure to raise meritless argument
upon the law as it existed at the time of trial.”). (continued...)
8
This dearth of authority persists even today; a basis for showing deficient performance.
no statutory amendment or judicial decision Reasonable jurists cannot disagree with the
has addressed whether the mental retardation district court’s conclusion that counsel were
finding envisioned by § 3596(c) is a question not constitutionally ineffective. We deny a
for the court or the jury. Moreover, even if COA on this ineffective assistance claim.
there were a subsequent legal development
holding that the jury is the fact-finder required D.
by § 3596(c), the admonition to reviewing Webster seeks a COA on his claim that the
courts to “eliminate the distorting effects of prosecution withheld impeachment evidence in
hindsight . . . and to evaluate the conduct from contravention of its due process obligation
counsel’s perspective at the time,” Washing- under Brady v. Maryland, 373 U.S. 83 (1963),
ton, 466 U.S. at 689, would render Webster’s and its progeny. The evidence allegedly with-
claim meritless.19 held is the same material Webster faults his
trial counsel for not investigating and present-
It follows, then, that counsel cannot be ing to the jury: alleged racial discrimination in
deemed constitutionally ineffective for failing the district where Webster attended school and
to anticipate a “subsequent development,” and specific evidence of the district’s discrimina-
Webster cannot rely on the failure to object as tory practice of failing to place black students
in special education classes when necessary.
As with his ineffective assistance claim, Web-
18
(...continued) ster maintains that disclosure of this evidence
cannot form basis of ineffective assistance claim). would have provided a basis for impeaching
19 government witnesses who testified that he
See, e.g., Lucas, 132 F.3d at 1078-79 (reject-
was not mentally retarded and who noted the
ing claim of deficient counsel performance “be-
cause counsel is not required to anticipate subse- fact that he was not enrolled in special educa-
quent developments in the law”); Organ v. Cock- tion classes.
rell, 297 F.3d 349, 360–61 (5th Cir. 2002) (hold-
ing that failure to object to supplemental mitigating The right to due process is violated where,
evidence instruction was not deficient performance on request, the government conceals evidence
before the issuance of Penry v. Johnson, 532 U.S. (exculpatory as well as impeachment) that is
782 (2001)); Clark v. Collins, 19 F.3d 959, 965- favorable to the defendant and material to
66 (5th Cir. 1994) (rejecting claim of deficient guilt or innocence, irrespective of the good
performance for failure to object to racially-moti- faith of the prosecution. See id. at 87–88;
vated peremptory strikes before issuance of Batson United States v. Bagley, 473 U.S. 667, 676
v. Kentucky, 476 U.S. 79 (1986)); Wiley v. Puck- (1985); United States v. Ellender, 947 F.2d
ett, 969 F.2d 86, 102 (5th Cir. 1992) (same); Gray 748, 756 (5th Cir. 1991). “[E]vidence is mate-
v. Lucas, 677 F.2d 1086, 1096 n.9 (5th Cir. 1982)
rial only if there is a reasonable probability
(holding that failure to object to prosecutor’s
interjection of future dangerousness through expert
that, had the evidence been disclosed to the
testimony did not constitute deficient performance defense, the result of the proceeding would
in advance of caselaw discrediting such testimony); have been different. A ‘reasonable probability’
see also United States v. Kleinbart, 27 F.3d 586, is a probability sufficient to undermine confi-
593 (D.C. Cir. 1994) (holding that failure to dence in the outcome.” Bagley, 473 U.S. at
appeal jury instruction did not constitute ineffective 682.
assistance “[g]iven the unclear state of the law”).
9
fails the threshold showing of materiality. “In
Relying on its antecedent conclusion that assessing the materiality of undisclosed im-
Webster could not demonstrate prejudice peachment evidence, ‘we must consider the
from counsel’s failure to discover and present nature of the impeachment evidence improp-
evidence of the school district’s discriminatory erly withheld and the additional evidence . . .
practices, the district court denied habeas relief independent of the disputed testimony.’”
on this claim. Jurists of reason cannot find Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir.
debatable or wrong the rejection of Webster’s 1994) (quoting United States v. Weintraub,
Brady claim. 871 F.2d 1257, 1262 (5th Cir. 1989)).
Even assuming, arguendo, that Webster can Although Webster maintains that such evi-
make the threshold showing that the govern- dence could have effectively countered the
ment suppressed (and was therefore in pos- government’s position that he is not mentally
session of) this information,20 Webster’s claim retarded, our analysis of his related ineffective
20
Webster attempts to make this showing by
vaguely referring to a desegregation lawsuit pro-
secuted by the Department of Justice against seven
20
Arkansas school districts, including his, in 1970. (...continued)
See generally United States v. Watson Chapel ernment are severable entities”); United States v.
Sch. Dist. No. 24, 446 F.2d 933 (8th Cir. 1971) Auten, 632 F.2d 478, 481 (5th Cir. 1980) (finding
(consolidated appeal regarding, inter alia, order prosecution was in possession of criminal history
requiring district to implement plan for unitary of witness even though no background check was
school district, and order finding members of conducted); United States v. Deutsch, 475 F.2d
school board guilty of civil contempt for failing to 55, 57-58 (5th Cir. 1975) (finding prosecutor was,
comply with implementation order). Webster for purposes of Brady, in possession of information
maintains that “by virtue of its previous prosecu- in Postal Service files), there are limits on the
tion of the school district, [the government] was in imputation of knowledge from one arm of the
possession of evidence which questioned the credi- government to prosecutors. “[T]he prosecution is
bility of their witnesses.” In other words, Webster deemed to have knowledge of information readily
seeks to impute to the federal prosecutors trying his available to it . . . .” Williams v. Whitley, 940
case knowledge of a desegregation lawsuit filed in F.2d 132, 133 (5th Cir. 1991) (emphasis added).
the 1970’s against his childhood school district,
from which he claims some impeachment evidence If this evidence is deemed “readily available” to
can be inferred. the prosecutors for purposes of Brady, we are
hard-pressed to conceive of any information that
Although “the prosecution” for Brady purposes would fall outside Brady’s constitutional mandate
does encompass more than the individual prosecu- of disclosure. After all, even knowledge of the
tor or group of prosecutors trying the case, and the school district’s history of segregation would not
prosecution may be deemed, in limited circum- lead a reasonable prosecutor where Webster claims
stances, to be in “constructive possession” of Bra- it leads, i.e., to question the credibility of school
dy material, see, e.g., Martinez v. Wainwright, 621 district employees testifying about Webster’s
F.2d 184, 186-87 (5th Cir. 1980) (finding no sug- mental capacity. Thus, Webster’s conclusional
gestion in Brady “that different ‘arms’ of the gov- allegation of knowledge is not sufficient to
(continued...) demonstrate suppression for purposes of Brady.
10
assistance claim obtains equally here.21 In the impeachment value, if any (given the conflict-
main, the prosecution presented substantial ev- ing testimony by Webster’s brothers), of such
idence countering Webster’s claim of mental evidence does not raise a reasonable probabil-
retardation, and the government’s effort did ity that, had the evidence been disclosed, the
not depend in any significant respect on Web- outcome would have been different.24
ster’s non-enrollment in special education
courses. In sum, even indulging (on this threshold
review) Webster’s highly attenuated and sus-
To the contrary, beyond cross-examining pect attempt to impute knowledge of this evi-
defense experts, the government produced two dence to the prosecution, the evidence alleg-
medical experts who testified that they did not edly withheld is not material. Because jurists
believe Webster was mentally retarded, and, of reason could not find this due process claim
primarily, that the methodology used by the debatable, we deny a COA on this issue.
defense experts to gauge his mental capacity
was critically flawed.22 Moreover, the govern- E.
ment presented numerous other witnesses Webster contends that § 3596(c) is uncon-
whose testimony contradicted Webster’s claim stitutionally vague and violates his right to due
of mental retardation.23 Thus, the incremental process because it fails to provide any guid-
ance on (1) whether the issue of mental retar-
dation is to be decided by the judge or jury; (2)
21
Accord Wilson, 28 F.3d at 437 n.6 (noting whether the decision is to be made pretrial or
that Bagley’s formulation of the materiality stan- at sentencing; (3) what is the burden of proof;
dard for Brady claims is derived from Washington, and (4) what is the relevant standard for a
466 U.S. at 698). finding of retardation. Although the district
22 court noted that Webster had failed to raise
Both government experts, George Parker and
Richard Coons, testified that, in their opinion, this claim on direct appeal,25 the court never
Webster had an incentive not to perform well on
the cognitive tests administered after he was
charged in this case, and pointed to prior cognitive 23
(...continued)
tests taken by Webster on which he scored higher. mitted names and addresses of people for his
Parker also testified at length regarding his position visitation list; and on one occasion complained be-
that the so-called “Vineland test” administered by cause the change he received from the prison
defense expert Dr. Keyes was an inappropriate and commissary was incorrect.
deceptive measure of Webster’s adaptive skills
24
given Webster’s lifestyle as a drug-dealer. See, e.g., Drew v. Collins, 964 F.2d 411,
419-20 (5th Cir. 1992) (holding that incremental
23
These witnesses included correctional officers impeachment value from minor inconsistencies be-
and fellow inmates who testified that, while incar- tween witness’ taped and written statements did not
cerated, Webster engaged in various activities satisfy Brady’s materiality standard).
potentially inconsistent with a finding of mental
25
retardation. For example, he wrote letters to fellow Indeed, as we noted, Webster argued on direct
inmates; received letters and newspapers; read appeal that the statute did provide sufficient guid-
aloud from newspapers; wrote request slips for ance: It entrusted the decision to the jury. As
various services; wrote written grievances; sub- support for this interpretation, Webster pointed to
(continued...) (continued...)
11
theless proceeded to consider and reject it on breathe new life into it on collateral review,
the merits. Webster relies on new statistical evidence
compiled by the Department of Justice.27
Webster may not, however, raise this issue Finding that those statistics are identical to
for the first time on collateral review without those held insufficient to state a prima facie
showing both “cause” for his procedural de- case of selective prosecution in United States
fault and “actual prejudice” resulting from the v. Jones, 287 F.3d 325, 332-35 (5th Cir.
error. See, e.g., United States v. Shaid, 937 2002), the district court rejected this claim.
F.2d 228, 232 (5th Cir. 1991) (en banc). He
has neither alleged nor shown cause and pre- We agree that the statistics are wholly in-
judice, so this claim cannot form the basis of a sufficient to meet the threshold requirement
substantial showing of the denial of a constitu- that Webster was singled out in the capital
tional right. We deny a COA on this issue. charging decision on the basis of his race, but
F. that others similarly situated were not. De-
Webster avers that the death sentence was spite citing to new statistical data, Webster has
applied in his case as a result of a “systematic done no more than repeat his claim of error re-
pattern of racial discrimination” on the part of jected on direct appeal. Because he has failed
the government in violation of the Fifth and to make the requisite showing of the denial of
Eighth Amendments. This claim was raised a constitutional right, we deny a COA on this
and rejected on direct appeal.26 Attempting to issue.
25
G.
(...continued) Webster contends that his due process
18 U.S.C. § 3593(b), which provides that the court
rights were violated by the presentation of
will act as a fact-finder “upon the motion of the de-
“perjured and damaging testimony” from co-
fendant and with the approval of the attorney for
the government.” He asserted that this provision defendants Steven Beckley and Marvin Hollo-
precluded any fact-finding by the court absent the way. He alleges that two post-trial events pro-
defendant’s motion. See Webster, 162 F.3d at vide a basis for this claim: first, that Beckley
351-52. told a correctional officer and an inmate that
he had lied at Webster’s trial in an effort to im-
26
Webster argued on direct appeal that the dis- prove his standing with the government; and
trict court erred by denying his motion (which was second, that Orlando Hall, another co-defen-
based on alleged racial discrimination in the charg- dant, received a letter from Holloway stating
ing decision) to dismiss the government’s notice to that he owed Webster an apologySSa state-
seek the death penalty. In rejecting this claim, we ment Webster cites as evidence that Holloway
concluded that Webster had failed to make the lied at trial.
requisite showing that he was singled out for
selective prosecution; that his statistical evidence
was insufficient to rebut the good-faith presump-
tion on the part of the prosecution; and that the 26
(...continued)
objective circumstances of the crime and the death penalty. See id. at 333-35.
sufficiency and availability of evidence to the prove
27
the elements required constituted proper and legiti- See DEP’T OF JUSTICE: THE FEDERAL DEATH
mate non-discriminatory grounds for seeking the PENALTY SYSTEM: A STATISTICAL SURVEY
(continued...) 1988–2000 (2000).
12
The district court determined that, even if allegations of perjury are accurate, his underly-
Webster’s allegations of perjury were accepted ing due process claim is not debatable, because
as true, his claim is meritless given his failure he has failed even to allege that the prosecu-
even to allege that the government knew that tion knew that any statements made by either
any of the testimony given by Beckley or witness were false.29
Holloway was false.28 Jurists of reason could
not find debatable or wrong the district court’s Because Webster has failed to identify any
rejection of this claim. statement that is false, and has not even al-
leged the government knowledge of falsity on
“[I]t is established that a conviction ob- which a due process claim is based, he has not
tained through the use of false evidence, made a substantial showing of the denial of his
known to be such by representatives of the constitutional right to due process. We deny
State, must fall under the Fourteenth Amend- a COA on this issue.
ment . . . . The same result obtains when the
State, although not soliciting false evidence, H.
allows it to go uncorrected when it appears.” Webster seeks a COA on his claim that his
United States v. O’Keefe, 128 F.3d 885, 893 (alleged) mental retardation renders his execu-
(5th Cir. 1997) (quoting Napue v. Illinois, 360 tion contrary to binding international law. The
U.S. 264, 269 (1959) (emphasis added)). To district court rejected this claim on the merits,
establish a due process violation based on the concluding that international law affords
government’s use of false or misleading testi- Webster no greater relief than does domestic
mony, Webster must show that (1) the testi- constitutional relief under the Eighth Amend-
mony in question was actually false; (2) the ment as interpreted in Atkins v. Virginia, 536
testimony was material; and (3) the prosecu- U.S. 304 (2002). Jurists of reason could not
tion had knowledge that the testimony was disagree or find wrong the district court’s
false. Id. at 893 (citing United States v. Black- conclusion in that regard.
burn, 9 F.3d 353, 357 (5th Cir. 1993)).
Reliance on that conclusion is not neces-
As a threshold matter, Webster has failed to sary, however. Because Webster did not raise
identify even a single specific statement made this claim on direct appeal and has failed to
by either witness that is false; instead, he offers demonstrate cause and prejudice for this de-
only conclusional statements about the ulti- fault, in either his § 2255 motion or his COA
mate falsity of Beckley’s and Holloway’s application in the district court or with this
testimony. Moreover, even if Webster’s court, he may not raise it for the first time on
collateral review. See, e.g., Shaid, 937 F.2d at
28
The district court also questioned whether
29
Webster had presented any evidence demonstrating See, e.g., East v. Scott, 55 F.3d 996, 1005
that either witness lied at trial. In fact, the court (5th Cir. 1995) (holding that allegations failed to
observed that both Beckley’s alleged statement and establish prima facie case of Napue violation
Holloway’s letter could plausibly be read as indica- where defendant “fails to allege any facts suggest-
tions that both men were apologetic about testify- ing prosecution knew about” contested subject);
ing against Webster to improve their own liability see also O’Keefe, 128 F.3d at 893; Blackburn,
situations and not as admissions of perjury. 9 F.3d at 357.
13
232. We deny a COA on this issue. merely claims error in the denial of discovery
and lists the thirteen grounds for relief on
I. which he seeks to engage in discovery. His
Webster seeks a COA regarding the district application thus reflects a desire to use the ha-
court’s denial of his request for discovery.30 beas corpus discovery mechanism to explore
He claims that the court abused its discretion his case “in search of its existence.” Id. (quot-
in denying discovery, thereby violating his due ing Aubet v. Maine, 431 F.2d 688, 689 (1st
process rights. Cir. 1970)). This court does not, however,
“sanction fishing expeditions based on peti-
A habeas petitioner may “invoke the pro- tioner’s conclusory allegations.” Rector, 120
cess of discovery available under the Federal F.3d at 562 (citing Perillo, 79 F.3d at 444).
Rules of Civil Procedure if, and to the extent Because Webster has failed to identify, with
that, the judge in the exercise of his discretion specific allegations, any dispositive factual dis-
and for good cause shown grants leave to do putes, we deny a COA on this issue.
so, but not otherwise.” Rector v. Johnson,
120 F.3d 551, 562 (5th Cir. 1997) (citing The application to extend the COA issued
Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. by the district court is in all respects DENIED.
1996)). “A federal habeas court must allow
discovery and an evidentiary hearing only
where a factual dispute, if resolved in the
petitioner’s favor, would entitle him to relief .
. . .” Ward v. Whitley, 21 F.3d 1355, 1367
(5th Cir. 1994). Conclusional allegations are
insufficient to warrant discovery; the petitioner
must set forth specific allegations of fact. Id.
(citing Willie v. Maggio, 737 F.2d 1372 (5th
Cir. 1984)).
Webster’s application does not allege a sin-
gle factual dispute, which, if resolved in his fa-
vor, would entitle him to relief.31 Instead, he
30
During the pendency of his initial § 2255 mo-
tion, Webster requested and was granted permis-
sion to file a motion for discovery, which the court
denied.
31
Compare Perillo, 79 F.3d at 444-45 (finding
31
error in denial of discovery where habeas petitioner (...continued)
had stated a specific factual disputeSSwhether her entitle her to relief), with Rector, 120 F.3d at 562
attorney represented another person involved in the (affirming denial of discovery request where ha-
charged crime, and therefore had a conflict of beas petitioner had “failed to make at least a prima
interestSSwhich, if resolved in her favor, would facie showing of what specifically he intends to
(continued...) prove”).
14