Knox v. Johnson

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

___________________________

No. 99-41068
___________________________

JAMES ROY KNOX,

Petitioner-Appellant,

VERSUS

GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.

___________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
___________________________________________________

August 21, 2000

Before DAVIS, SMITH and WIENER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

James Roy Knox appeals the district court’s denial of his 28

U.S.C. § 2254 petition for a writ of habeas corpus seeking to set

aside his June 22, 1994 conviction and death sentence for murder in

the course of a robbery. Knox contends that the district court

erred in granting summary judgment against his numerous challenges

to the constitutionality of his conviction. For the reasons that

follow, we affirm the judgment of the district court.

-1-
 I

On November 10, 1982, at approximately 5:30 p.m., a man

entered Joe’s Pharmacy in Galveston, Texas, brandishing a dark

semiautomatic pistol. He pointed the pistol at the pharmacist, Joe

Sanchez, and his assistant, Ronald Dale Dyda, and demanded money

and drugs. The robber, described by Dyda as a thin unshaven white

male, approximately six feet tall, ordered Sanchez and Dyda to “get

down on the floor.” When Sanchez refused to comply, the robber

gave Dyda some medical tape and told him to bind Sanchez’s hands.

Sanchez resisted, pulling his hands apart and instructing Dyda

not to give any money to the robber. As Sanchez freed himself, the

pharmacy phone rang. Sanchez answered the phone and heard Joanne

Seelbach, a long-time customer, on the line. Seelbach testified

that Sanchez answered the phone as usual, but then yelled, “I don’t

know where the dope’s at.” Seelbach testified that she heard an

unfamiliar male voice demand, “I want the Goddamn dope” and

threaten, “You son-of-a-bitch, I am going to kill you.” Seelbach

then heard a shot ring out and overheard the unfamiliar male voice

state, “now you will give me the dope you son-of-a-bitch.” She

immediately hung up and called the police.

Dyda testified that he too heard the gunshot and saw Sanchez

fall through a curtain behind the counter. According to Dyda, the

robber pointed the gun at him and demanded “Class A” narcotics.

Dyda handed the robber four small brown bottles of Demerol and the

-2-
cash from the register. The robber asked for more drugs, but when

Dyda turned to retrieve more from the counter, the robber fled out

the front door.

Sanchez died shortly thereafter from a gunshot wound to the

midchest. Authorities recovered the bullet and determined that it

came from either a .38-caliber or a 9mm gun.

At the time of the robbery, Kathleen Austin, Gene Austin, and

Robert Clarac were at the Austins’ catering shop next door to Joe’s

Pharmacy. They heard a loud bang and went outside to investigate,

thinking that the noise came from someone hitting a car in the

parking lot. Kathleen Austin and Robert Clarac testified that they

noticed an old dark brown car running its engine. Kathleen and

Robert headed back towards the front of her store and almost

collided with a man running around the corner from Joe’s Pharmacy.

They described the man as a thin, scraggly-looking white male,

approximately six feet tall. Upon seeing Kathleen, the man slowed

to a walk and bid her “Have a nice day.” Kathleen noticed that he

was concealing his left hand under his shirt and carrying about

three brown bottles in his right hand.

Gene Austin described seeing the same man and car. He also

saw a driver waiting behind the wheel of the car and saw the

scraggly-looking man get in the passenger seat of the car. Gene

further testified that he saw the car drive off in a westerly

direction and that he tried to follow the car but was too late.

-3-
 Authorities apprehended James Roy Knox in 1984 and charged him

with the Joe’s Pharmacy robbery and murder. Knox’s cellmate in the

Galveston County jail, Carroll Bernard Smith, testified that Knox

admitted to him that he robbed a drug store in Galveston.

According to Smith, Knox told him that he attempted to tie-up the

pharmacist but had to shoot him when he resisted. Smith further

testified that Knox told him that he buried the gun halfway between

Galveston and Houston and that after the robbery he headed to

Houston where he “did another job.” Additionally, Smith stated

that he helped Knox shave his head in order to stymie Knox’s

impending police line-up.

At trial, the State introduced the testimony of a number of

Knox’s accomplices. George Holland, the admitted getaway driver,

testified that in October 1982, he and Knox discussed robbing a

certain drug store in Galveston. According to Holland, Knox stated

that the robbery would be “a piece of cake” because the pharmacy

did not employ any security cameras. Holland also testified that

he had seen Knox with a small, dark grey .38-caliber semiautomatic

pistol.

According to Holland, he and Knox began to make concrete plans

for the robbery in November 1992. In November, Holland and Knox,

along with two other friends, drove up to Galveston to see if the

pharmacy had installed security cameras. After learning that the

pharmacy had not upgraded its security, the foursome went to drink

-4-
beer and discuss plans. As Holland testified, Knox explained that

he would rob the store employees and Holland would drive the car.

The four then returned to Houston.

Holland testified that the next day, he and Knox again drove

to Galveston. Once the sun went down, the two men drove to the

pharmacy. Holland explained that he waited out in the back parking

lot while Knox went inside. Holland testified that Knox returned

to the car, got on the floorboard, and instructed Holland to get

out of Galveston. Holland stated that he noticed people coming

around the side of the building as he and Knox pulled out of the

parking lot. He also observed three brown pill bottles in Knox’s

hands. As they were leaving, Knox explained that, “The man got

ignorant with me so I had to shoot him.” When Holland asked, “how

bad,” Knox responded that he had killed the man. Holland told Knox

to get out of his car and called Gary Morgan to pick up Knox and

take him to a bus station. Holland then left for Alabama.

Gary Morgan testified that he too planned the robbery with

Knox and that he and his wife accompanied Knox and Holland to

Galveston in order to reconnoiter Joe’s Pharmacy. Morgan further

stated that he picked up Knox after receiving Holland’s phone call.

He testified that Knox had some small brown pill bottles with him,

which they hid in Holland’s car. Morgan also testified that Knox

told him that he had used his gun while committing the robbery and

explained that Knox shot the man after he refused to be taped and

-5-
apparently reached towards his back pocket. Knox also admitted

that he got the drugs from the pharmacist’s assistant. Morgan

testified that Knox gave him some of the cash and pills from the

robbery.

Robert Clark, another of Knox’s friends in Alabama, testified

that Knox discussed robbing a drug store in Galveston. Knox

explained to Clark that he could easily rob the pharmacy and obtain

cash and Class A narcotics. At the time, Clark knew that Knox

carried a .38-caliber semiautomatic pistol.

According to Clark, Knox returned approximately one week later

and told Clark that he had robbed the pharmacy in Galveston. Knox

explained that he tried to tie up an employee but had to shoot him

when the employee reached for his pants pocket. Clark testified

that Knox explained Holland’s role as the driver and told Clark

that they hid the gun at some halfway point. Clark noted that Knox

had some Demerol in little brown bottles.

Kathy Pressletz, Knox’s former roommate, testified that in the

summer of 1981, Knox discussed robbing Joe’s Pharmacy in Galveston

because it would “be easy to knock off.” Pressletz also stated

that Knox owned two guns, “a .38 and a .380.”

On December 5, 1985, the jury convicted Knox of murder in the

course of a robbery, a capital offense under Section 19.03(a)(2) of

the Texas Penal Code. The Texas Court of Criminal Appeals affirmed

the conviction. The Texas courts later denied Knox’s state habeas

-6-
petition.

Knox filed a federal habeas petition in the U.S. District

Court for the Southern District of Texas. The district court

denied the petition but a panel of this Court, on April 19, 1991,

reversed and remanded the case “with directions to grant the writ

of habeas corpus, unless the State of Texas conducts a new penalty

phase within a reasonable time.” Knox v. Collins, 928 F.2d 657,

662 (5th Cir. 1991).

On November 8, 1991, Knox filed a motion asking the district

court to grant his habeas relief because the state had not yet

retried him. The State responded that it was waiting for the

district court to set “a reasonable time” for the retrial to begin.

The district court held that this Court’s order was self-enforcing

and did not require an additional order from the district court.

On February 26, 1992, the court issued an order denying Knox’s

request for habeas relief and requiring the State to begin retrial

within ninety days, which the State did.

On June 22, 1994, a Texas jury again convicted Knox and the

court again assessed the death penalty pursuant to the jury’s

answers to the special issues. The Court of Criminal Appeals

affirmed. Knox v. State, 934 S.W.2d 678 (Tex. Crim. App. 1996).

On June 30, 1997, Knox filed an application with the state court

for writ of habeas corpus. The trial court conducted an

evidentiary hearing and denied the application. The Court of

-7-
Criminal Appeals affirmed the denial.

In February 1999, Knox sought habeas relief in the United

States District Court for the Southern District of Texas. The

district court denied the petition and Knox filed the instant

appeal. The district court granted a Certificate of Appealability

on the issues raised.

II

This petition, filed after April 24, 1996, is governed by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28

U.S.C. § 2254. Under the AEDPA, we may not issue a writ of habeas

corpus with respect to “any claim that was adjudicated on the

merits in State court proceedings” unless the State court’s

adjudication of the claim resulted in “a decision that was contrary

to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court . . . ; or resulted

in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d). As the Supreme Court has

recently explained, 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, —

-8-
U.S.— , 120 S.Ct. 1495, 1523 (2000). We may issue a writ based on

the State Court’s unreasonable application of Federal law only “if

the state court identifies the correct governing legal principle .

. . but unreasonably applies that principle to the facts of the

prisoner’s case.” Id. We presume state court factual findings to

be correct and will defer to these findings “unless they were

‘based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceeding.’” Chambers v.

Johnson, 218 F.3d 360, 363 (5th Cir. 2000)(quoting 28 U.S.C. §

2254(d)(2)).

III

Knox contends that the district court erred in granting

summary judgment against his six constitutional claims: that the

trial court denied him his Sixth Amendment right to a speedy trial;

that the State violated the Fourteenth Amendment by using false

evidence against him at both the guilt and the punishment phases of

his trial; that the State violated the Eighth Amendment by using

inherently unreliable evidence against him at both phases of his

trial; that his counsel’s deficient performance denied him his

Sixth Amendment right to effective assistance of counsel; that the

State court violated the Sixth Amendment by excusing a prospective

juror on an impermissibly broad basis; and that the State violated

the Fourteenth Amendment by failing to disclose that it reached an

informal plea agreement with Carroll Bernard Smith in exchange for

-9-
Smith’s testimony.

A

Knox argues that the state trial court denied him his Sixth

Amendment right to a speedy trial. As Knox notes, the trial court

did not order a new trial until it received the federal district

court’s February 26, 1992 order requiring the state court to

commence trial within 90 days, eleven months after the Fifth

Circuit’s March 28, 1991 order of remand for a new trial. Knox

contends that this eleven month delay was unreasonable, was

attributable to the state, and prejudiced his ability to defend

himself at trial and at sentencing. According to Knox, the delay

made it impossible for Marion Wilson, an alibi witness and

sentencing mitigation witness, to testify. Knox states that Wilson

could not testify at the second trial because at the time he was at

a Maryland hospital receiving treatment for a blood disorder.

According to Knox, “[h]ad the trial occurred eleven months earlier,

Wilson would have been available to testify.” He suggests that

Wilson would have testified that Knox was working on a Motel 6

construction job in Richmond, Virginia on the date of the murders.

In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court

established a four-part balancing test for determining whether a

defendant received a speedy trial within the meaning of the Sixth

Amendment. Under Barker, a court must consider: (1) the length of

the delay; (2) whether the defendant asserted his right; (3) the

-10-
reason for the delay; and (4) the prejudice to the defendant. Id.

at 530. As a threshold inquiry, the petitioner must demonstrate

that the length of the delay is presumptively prejudicial. 407

U.S. at 530. “Until there is some delay which is presumptively

prejudicial, there is no necessity for inquiry into the other

factors that go into the balance.” Id.

Knox has failed to demonstrate that he has suffered an

unreasonable delay. This Court has previously held that a delay of

ten and one-half months is not presumptively prejudicial. See

United States v. Maizumi, 526 F.2d 848, 851 (5th Cir. 1976). And

while neither Barker nor the Constitution itself defines when a

delay becomes presumptively unreasonable, we have held that “[a]

delay of less than one year will rarely qualify as ‘presumptively

prejudicial’ for purposes of triggering the Barker inquiry.”

Cowart v. Hargett, 16 F.3d 642, 646 (5th Cir. 1994). As we

explained, “[a]bsent extreme prejudice or a showing of willfulness

by the prosecution to delay the trial in order to hamper the

defense, a delay of less than one year is not sufficient to trigger

an examination of the Barker factors.” Id. at 647. (internal

citations omitted).

Nothing in Knox’s petition or elsewhere in the record suggests

that the State willfully delayed Knox’s trial in order to hamper

his defense. Nor has Knox demonstrated “extreme prejudice.”

Although the delay may have prevented Knox from putting Marion

-11-
Wilson on the stand, the record establishes that Wilson could not

have supplied an alibi defense. As the state notes, Wilson

submitted conflicting affidavits, one that provided an alibi for

Knox and another that explained that he could not recall whether

Knox was actually working for him at the time in question.

Moreover, the testimony of other witnesses disproved the

possibility of Knox’s alibi, placed Knox in the Galveston area at

the time of the murder, and stated that Knox committed the offense.

In fact, the State presented an affidavit from the vice-president

of Motel 6 stating that construction on the Richmond, Virginia

Motel 6 did not occur until October 10, 1983, almost one year after

the Joe’s Pharmacy robbery and murder. Under such circumstances,

Knox’s inability to present Wilson’s testimony does not constitute

extreme prejudice. As such, the district court did not err in

granting summary judgment on Knox’s Sixth Amendment speedy trial

claim.

B

The Due Process Clause of the Fourteenth Amendment forbids the

State from knowingly using perjured testimony. Giglio v. United

States, 405 U.S. 150, 153 (1972). In order to prove that the State

has violated the Fourteenth Amendment by relying on such testimony,

the defendant must demonstrate: (1) that a witness for the State

testified falsely; (2) that such testimony was material; and (3)

that the prosecution knew that the testimony was false. Id. at

-12-
153-54.

Knox argues that the State violated the Fourteenth Amendment

by permitting Knox’s ex-roommate, Kathy Pressletz to testify. He

contends that at the first trial, Pressletz lied about four facts

during her testimony: that she had worked as a waitress at a bar

named “Snuffy’s,” that her father was named “James Russell,” that

her father owned the building in which the bar was located, that

Knox had cut her with a knife, sending her to the emergency room at

John Sealy Hospital, and that she did not begin using drugs until

she met Knox. Although Pressletz abandoned the knife story at the

second trial, she reiterated her statements concerning her drug

use, her father, and her employment at Snuffy’s. Knox does not

suggest that Pressletz’s statements regarding her father and

Snuffy’s affected the outcome of his trial, but simply that these

lies demonstrated that Pressletz is a liar and should not have

testified. He concludes that because Pressletz’s testimony played

an instrumental role in corroborating the testimony of other

witnesses, “it undoubtedly played a large role in the jury’s

deliberations at the guilt phase” and thus renders their verdict

untrustworthy.

Although Pressletz may have either lied or mistakenly

testified about the knife wound, her father, and her employment at

Snuffy’s, Knox has not presented any evidence that the State knew

that Pressletz’s testimony was false. Indeed, the state habeas

-13-
court found that the State did not offer “false or perjured

testimony during the trial of [Knox] and that “the State did not

present any testimony from Kathy Pressletz at the trial which it

had good reason to believe would be false.” Because these findings

are reasonable “in light of the evidence presented in the state

court proceeding,” we must defer to the state court’s

determinations. See Chambers v. Johnson, 218 F.3d 360, 363; 28

U.S.C. § 2254(d)(2).

Further, even assuming arguendo that the State knowingly

submitted perjured testimony, Knox has failed to demonstrate that

Pressletz lied about any material fact. Even if Pressletz lied

about her father and her employment – neither of which had any

bearing on Knox’s participation in the murder – a number of other

witnesses corroborated her relevant testimony – i.e. that Knox

often drove by Joe’s pharmacy, that he mentioned that it would be

“easy to knock off” the pharamacy, that he possessed handguns with

the type of ammunition found at the scene of the crime, and that he

threatened to kill her after she testified against him in a prior

hearing. As the Supreme Court explained in Giglio, a

constitutional violation occurs only where “the false testimony

could in any reasonable likelihood have affected the judgment of

the jury.” Id. at 154. As such, the district court did not err

in granting summary judgment against Knox’s Fourteenth Amendment

claim that the State used inherently unreliable evidence against

-14-
him at both phases of his trial.

C

Relatedly, Knox argues that, by relying on Pressletz’s false

testimony, the State also violated the Eighth Amendment’s

prohibition on cruel or unusual punishment. See Johnson v.

Mississippi, 486 U.S. 578 (1988). Because we defer to the state

court’s determination that Pressletz did not testify falsely, we

find this claim to be without merit.

D

Knox alleges that his defense counsel performed so inadequately

that his conduct deprived Knox of the Sixth Amendment right to

effective assistance of counsel. According to Knox, defense

counsel committed the following errors: failure to present an

alibi witness, failure to challenge a death-prone juror for cause,

failure to impeach a prosecution witness, failure to object to the

prosecution’s bolstering of critical witnesses; failure to keep

out evidence of an extraneous offense; and failure to rebut

punishment evidence. Knox insists that, when considered together,

these errors rise to the level of constitutionally deficient

performance.

In order to prove that his attorney’s conduct denied him his

Sixth Amendment right to effective assistance of counsel, Knox

must show both that his counsel’s representation fell below

professional norms and that the deficient performance prejudiced

-15-
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Our review of counsel’s performance is “highly deferential.” Id.

at 689. As the Supreme Court has explained, “[a] fair assessment

of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the

conduct from the counsel’s perspective at the time.” Id. Thus,

“the defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound

strategy.” Id. (internal quotations omitted). Even a deficient

performance does not result in prejudice unless that conduct so

undermined the proper functioning of the adversary process that

the trial cannot be relied upon as having produced a just result.

Id. at 687. The errors alleged by Knox fail to rise to such

levels of either incompetence or prejudice, even when considered

cumulatively. We will discuss each in turn.

First, Knox argues that his trial counsel performed

ineffectively by failing to secure the presence of alibi witness

Marion Wilson at his trial. As we discussed earlier, Wilson

provided inconclusive and contradictory testimony at the first

trial and a number of other witnesses persuasively debunked his

“alibi” theory – that Knox was working in Richmond, Virginia

during the Joe’s Pharmacy robbery and murder. Defense counsel’s

failure to call Wilson to testify suggests a realistic appraisal

-16-
of the implausibility of Wilson’s alibi theory, rather than

deficient performance.

Second, Knox argues that his counsel performed ineffectively by

failing to lodge a for-cause challenge against juror Nancy

Allison, whom Knox describes as “a death-prone prospective juror.”

He notes that Allison’s father was murdered in the course of a

robbery and that she answered that she would not mitigate a

capital sentence and would answer the special questions in a way

that ensured a death sentence. Knox concludes that Allison’s

unwillingness to consider mitigating evidence or to impose a life

sentence because of the possibility of parole rendered her

excludable for cause. See Morgan v. Illinois, 504 U.S. 719

(1992).

As the State points out, however, Allison also evinced pro-

defense views. Allison stated that she would place the burden of

proof on the State to prove its case beyond a reasonable doubt and

that, as a Christian, she would have difficulty imposing the death

penalty. Given these statements, we cannot say that defense

counsel’s failure to challenge Allison for-cause falls “outside

the wide range of professionally competent assistance.” See

Strickland, 466 U.S. at 690.

Third, Knox argues that defense counsel failed to impeach the

testimony of George Holland, Knox’s accomplice and get-away

driver. According to Knox, defense counsel at Knox’s first trial

-17-
successfully impeached Holland by presenting Allen Thompson,

Holland’s cellmate, as a witness. Thompson testified that Holland

intended to get a deal for his testimony, that Holland had a visit

with a person who gave Holland papers that he described as

pertaining to the charges against him.

Knox’s argument is without merit. Thompson’s testimony in the

first trial consisted of little more than speculation and

insinuation. Thompson could not testify as to any evidence of a

deal other than Holland’s vague insinuations and the fact that he

received papers after speaking with somebody. At the first trial,

Thompson testified that he never saw Holland with a member of the

District Attorney’s office nor saw any papers indicating that

Holland had struck a deal in exchange for his testimony.

Moreover, the State correctly points out that Holland testified

that he did not receive such a deal. Defense counsel may simply

have realized that Thompson’s testimony did little to discredit

Holland. A decision not to call such a weak rebuttal witness

certainly does not amount to a breach of professional judgment and

clearly cannot constitute a “breakdown in the adversary process

that renders the results unreliable.” Id. at 687.

Fourth, Knox argues that defense counsel failed to object to the

State’s illegal “bolstering” of its four main witnesses – Morgan,

Smith, Pressletz, and Holland. Knox’s argument is predicated on

the State’s question to each of the four witnesses about whether

-18-
they testified in the second trial as they did in the first. Knox

argues that such bolstering was impermissible because each of the

witnesses had a motive to fabricate at the time of the first

trial. Under Texas law, such statements are not admissible

because they do not constitute relevant rehabilitative evidence.

See Former Tex. R. Cr. Evid. 801(e)(1)(B); Haughton v. State, 805

S.W.2d 405 (Tex. Cr. App. 1990). Specifically, Knox contends that

both Morgan’s and Smith’s desire for plea agreements could have

led them to fabricate their testimony in the first trial and that

Pressletz is an inveterate liar who would have lied at both

trials. Knox also points out that the State mistakenly told the

jury during closing argument that Holland had testified as to the

same facts in both trials although the State made no attempt to

bolster his testimony during their redirect examination.

Although the Texas Rules of Criminal Evidence afforded defense

counsel an opportunity to object to such bolstering, counsel’s

failure to do so does not constitute ineffective assistance of

counsel. Counsel may well have believed that whether the State’s

witnesses testified as to the same facts at the first trial was

irrelevant and that he would have been able to impugn the

witnesses testimony regardless. He may have concluded that the

dangers inherent in objecting -- losing the objection or appearing

obstructionist to the jury -- outweighed the marginal benefit in

preventing the bolstering. Such a calculation was surely the

-19-
defense counsel’s to make. As the Supreme Court explained in

Strickland, “[t]here are countless ways to provide effective

assistance in any given case. Even the best criminal defense

attorneys would not defend a particular client in the same way.”

Strickland, 466 U.S. at 690.

Fifth, Knox argues that defense counsel failed to prevent the

admission of extraneous evidence. According to Knox, defense

counsel failed to object to the testimony of Carroll Bernard

Smith, Knox’s cellmate, that Knox and an accomplice “did a job”

after the robbery at Joe’s Pharmacy. Knox contends that counsel

should have been aware that Smith would testify as to this “job”

because he did so at the first trial. Counsel’s failure to file

a motion in limine, Knox contends, exposed Knox to “the danger of

being found guilty on the basis of impermissible character-

conformity evidence.”

Although defense counsel could have objected to this statement,

Smith’s passing reference to “a job” was unlikely to greatly

influence the jury. The full context of Smith’s statement

demonstrates that the reference was both cryptic and made in

passing:

Q Did he tell you what he did after he robbed

the drug store?

A Yes, he had somebody waiting outside the

-20-
 car, and from there he had this person take

him to a halfway point where he buried the

gun, and from there he had a second party

waiting to take him to South Houston to which

they done another job down there.

Defense counsel’s failure to object to this brief statement may

well have reflected the statement’s insignificance rather than

counsel’s incompetence. Regardless, this error simply does not

raise a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Id. at 694.

Lastly, Knox argues that defense counsel failed to present

readily available rebuttal evidence that would have undermined

Pressletz’s testimony at the punishment phase that Knox claimed to

have lynched a man in Vidor, Texas. According to Knox, the

defense counsel’s investigator was prepared to testify that

neither Vidor police records nor newspapers mentioned a lynching

during the time in question.

As Knox points out, the Texas Rules of Criminal Evidence permit

parties to introduce hearsay evidence in order “[t]o prove the

absence of a record, report, statement or entry . . .” Rule

803(10). Nevertheless, the State did not introduce this evidence

in order to prove that Knox had actually lynched a man, only that

-21-
he was the type of dangerous person who would brag about lynching

someone. Because the state clearly did not introduce Pressletz’s

statement in order to prove that Knox actually lynched someone,

defense counsel would have accomplished little by introducing

evidence that no lynching had been reported in Vidor. Thus,

defense counsel’s failure to object did not render his

representation constitutionally defective. Moreover, even if

defense counsel’s error was deficient, we cannot say that such an

error was likely to alter the result of the proceeding. The jury

sentenced Knox not simply on the basis of Pressletz’s testimony

but upon a wealth of testimony that persuasively portrayed Knox as

a dangerous killer, the man responsible for the Joe’s Pharmacy

robbery and murder.

Knox has failed to demonstrate either that his counsel committed

errors “so serious that counsel was not functioning as the counsel

guaranteed by the Sixth Amendment,” 466 U.S. at 687, or that his

“conviction or death sentence resulted from a breakdown in the

adversary process that renders the result unreliable.” Id. As

such, the district court did not err in entering summary judgment

against Knox’s Strickland claims.

E

In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Supreme

Court held that a State infringes upon a capital defendant’s Sixth

and Fourteenth Amendment rights when it excuses for cause those

-22-
members of the venire who express conscientious objections to

capital punishment. Id. at 521-22. The State may not challenge

a juror for cause “based on his views about capital punishment

unless those views would prevent or substantially impair the

performance of his duties as a juror in accordance with his

instructions and his oath.” Adams v. Texas, 448 U.S. 38, 45

(1980).

Knox argues that the State violated the rule of Witherspoon by

challenging Regina George, a prospective juror, simply because she

expressed conscientious objection to the death penalty. Knox

points out that George also stated that she could put aside her

personal beliefs and vote for the death penalty if the evidence so

required.

The state court found that “the State met its burden to show

that prospective juror[] Regina George . . . would have been

substantially impaired in [her] ability to honestly answer [the]

special issues.” This conclusion is supported by the record.

When the State asked whether she would be unable “to follow the

instructions of the Judge if that require[d] [her] to assess the

death penalty,” George answered, “Right.” Similarly, when asked

“Doesn’t matter what evidence we put on . . . you will not vote

for death no matter what?” George responded, “Right.” In light of

this evidence, we must defer to the state court’s factual

findings, see Chambers v. Johnson, 218 F.3d at 363, and conclude

-23-
that the state court properly excluded George as a juror.

F

Finally, Knox contends that the State violated the Due Process

Clause of the Fourteenth Amendment when the State failed to

disclose that it had struck an implicit plea agreement with

Carroll Bernard Smith. Knox alleges that Smith, his cellmate,

reached an implicit deal with the State and that the State should

have both disclosed the deal to Knox and instructed Smith to

testify truthfully about the deal. Because Smith provided

important corroborating testimony, both as to Knox’s role in the

murders and his future dangerousness, Knox concludes that he was

materially prejudiced by his inability to impeach Smith’s

testimony. These arguments are without merit.

The Due Process Clause requires that the State disclose any

material exculpatory information to the defense. Brady v.

Maryland, 373 U.S. 83 (1963). Evidence is material within the

meaning of Brady when there is a reasonable probability that the

result of the proceeding would have been different. United States

v. Bagley, 473 U.S. 667, 682 (1985). The Due Process Clause also

forbids the State from knowingly using perjured testimony where

there is a reasonable likelihood that such testimony will affect

the verdict. Giglio, 405 U.S. at 153-54.

The state court found that the State did not make a deal with

Smith in exchange for his testimony, did not fail to disclose an

-24-
offer to Smith, and did not offer false testimony. In fact, the

only evidence to support Knox’s claim is Smith’s statement that

although he did not reach an explicit deal with the State, “I

guess it’s more like a trust thing. I tell them what I knew and

hope like heck that when the time came that I did go to court, the

would recognize it and they would not so much recognize, but . .

. appreciate the help.” Smith never testified that the State told

him to trust them, only that he unilaterally chose to do so.

The record supports the state court’s factual conclusion that

the State did not offer a plea agreement to Smith. Smith’s

statement that he hoped that the State would recognize his

assistance does not necessarily demonstrate that the State even

subtly offered him a deal. The record reflects a unilateral hope

on Smith’s part rather than a deal, whether implicit or explicit,

between Smith and the State. Moreover, to the extent that this

determination also involved a conclusion of law -- that Smith’s

unilateral action did not amount to a deal, whether implicit or

explicit, -- it is well-supported by the law of this Circuit. As

we held in Goodwin v. Johnson, 132 F.3d 162, 187 (5th Cir. 1998),

“a nebulous expectation of help from the state . . . is not Brady

material.” See also United States v. Nixon, 881 F.2d 1305, 1311

(5th Cir. 1989)(holding that a witness’s impression that the

government would help him obtain a pardon in exchange for his

testimony in the absence of a “specific promise to help” was not

-25-
Brady material).

Because the record supports the state court’s factual

determinations and because the state court reasonably relied upon

the law of this Circuit, we must defer to their conclusions.

Thus, the district court did not err in rejecting Knox’s Due

Process challenge.

IV

For the above reasons, we AFFIRM the judgment of the district

court and DENY Knox’s petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254.

AFFIRMED.

-26-