United States v. Sherman Fields

Case: 13-70025 Document: 00512716717 Page: 1 Date Filed: 07/30/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 13-70025 July 30, 2014

Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff - Appellee

v.

SHERMAN LAMONT FIELDS,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before KING, JONES, and SMITH, Circuit Judges.

KING, Circuit Judge:

Petitioner-Appellant Sherman Lamont Fields was convicted of murder

in a jury trial in federal district court and sentenced to death. We affirmed his

conviction and sentence on direct appeal. Fields unsuccessfully sought habeas

relief in the district court on numerous grounds, and now seeks a certificate of

appealability to challenge the district court’s denial of habeas relief. We hold

that reasonable jurists could not debate the district court’s conclusions and

accordingly DENY Fields’s request for a certificate of appealability.

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I. FACTUAL AND PROCEDURAL BACKGROUND

A. Escape and Murder of Suncerey Coleman

Sherman Lamont Fields was arrested in September 2001 for being a

felon in possession of a firearm, and he was held in federal custody in a

detention center in Waco, Texas. In November 2001, while Fields was in

custody, he bribed a correctional officer, offering him $5,000 for a key to the

detention center’s fire escape. He used the key to escape on November 6.

That evening, Fields met with a friend, Edward Outley, who provided

Fields with a car and a handgun. Fields then visited his ex-girlfriend,

Suncerey Coleman, at Hillcrest Hospital in Waco, where she was caring for her

newborn child. Fields was angry at Coleman for having seen other men while

he was incarcerated. Fields convinced Coleman to leave the hospital with him

that evening, and drove her to Downsville, Texas, outside Waco. Fields and

Coleman had sexual intercourse, 1 and then he killed her by shooting her twice

in the head. Fields hid Coleman’s body in underbrush near the road.

Coleman’s body was found two weeks later, on November 21.

Using a handgun, Fields later carjacked an employee of Hillcrest

Hospital, Tammy Edwards, while she was exiting her car. Edwards managed

to escape, and Fields drove away in her car.

Police arrested Fields on November 24, 2001. In May 2003, the

government

charged Fields by a seven-count indictment with (1) conspiring to

escape from federal custody, (2) escaping from federal custody, (3)

using and carrying a firearm during and in relation to escape,

resulting in intentional murder, (4) carjacking, (5) using and

carrying a firearm during and in relation to carjacking, (6) felon in

1 As we noted on direct review, “[i]t is unclear whether the sex was consensual.”

United States v. Fields, 483 F.3d 313, 323 n.2 (5th Cir. 2007).

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possession of a firearm, [and] (7) using and carrying a Ruger .22

caliber firearm during and in relation to escape.

Fields, 483 F.3d at 324. The government sought the death penalty on the

murder charge.

B. Fields’s Trial

1. Guilt / Innocence Phase

Fields’s trial took place in January and February of 2004. Fields

represented himself pro se, with his appointed counsel acting as standby

counsel. Fields pleaded not guilty to each charge. His defense was that he did

not kill Coleman, but that his second girlfriend, Shalaykea Scroggins, did so

with Outley. He contended that Scroggins was in “a passionately jealous rage”

and shot Coleman in the back of the head, and that Outley, who was

Scroggins’s sister’s boyfriend, shot Coleman a second time. The jury rejected

Fields’s defense and found him guilty on all counts.

2. Punishment Phase

Fields agreed to be represented by his appointed counsel during the

punishment phase of the trial. After hearing the evidence, the jury

recommended the death penalty. The district court sentenced Fields to death.

The district court also sentenced Fields to 715 months of imprisonment on the

noncapital counts.

C. Post-Conviction Proceedings

1. Direct Appeal

On direct appeal, we rejected Fields’s claims of sentencing error and trial

error, and affirmed his convictions and sentences. Fields, 483 F.3d at 323. 2

2 Fields raised the following claims of sentencing error: the district court admitted

testimonial hearsay in violation of Fields’s Confrontation Clause rights; the district court’s

Allen charge was coercive; the government’s use of a “televisual ‘picture in picture’ metaphor”

at closing argument violated his due process and Eighth Amendment rights; the district court

erred in admitting expert psychiatric testimony on future dangerousness; and the Federal

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2. Federal Habeas Petition

Fields filed several motions seeking to vacate his conviction pursuant to

28 U.S.C. § 2255, alleging a total of forty-nine claims. The district court denied

relief on all claims in its September 25, 2012 order, and found, sua sponte, that

a certificate of appealability (“COA”) should not issue. Fields filed a motion to

vacate or amend the district court’s order denying his § 2255 motion, among

other post-judgment motions, all of which the district court denied.

II. STANDARD OF REVIEW

“This court may not consider an appeal from the denial of a 28 U.S.C.

§ 2255 motion for relief unless either the district court or this court issues a

COA.” United States v. Hall, 455 F.3d 508, 513 (5th Cir. 2006) (citing 28 U.S.C.

§ 2253(c)(1)(B)); see also United States v. Bourgeois, 537 F. App’x 604, 610–11

(5th Cir. 2013) (unpublished). To obtain a COA, Fields must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists

of reason could disagree with the district court’s resolution of his constitutional

claims or that jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.

Death Penalty Act violates the Sixth Amendment. Fields also raised the following claims of

trial error: the district court erred by failing to secure the advice of the Federal Public

Defender before appointing capital counsel; the district court’s refusal to appoint unconflicted

substitute counsel rendered Fields’s waiver of counsel involuntary and, relatedly, the court

neglected its duty to inquire about the conflict; the district court erred in instructing the jury

about the significance of the grand jury’s decision to indict Fields; the district court erred in

admitting into evidence photographs of the victim’s body; the district court abused its

discretion by requiring Fields to wear a stun belt during the trial; the district court erred by

excluding a potential juror due to the juror’s opposition to the death penalty; the government

committed prosecutorial misconduct by eliciting inadmissible evidence, goading Fields with

objections, making an improper sidebar remark, and making several improper remarks

during the closing argument; the district court’s management of Fields’s standby counsel

violated his due process rights; and lastly, Fields’s convictions must be set aside for

cumulative error.

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322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The

Supreme Court has explained that “a claim can be debatable even though every

jurist of reason might agree, after the COA has been granted and the case has

received full consideration, that petitioner will not prevail.” Id. at 338.

In determining whether to grant a COA, “the court of appeals should

limit its examination to a threshold inquiry into the underlying merit of [the

petitioner’s] claims.” Id. at 327. This inquiry consists of “an overview of the

claims in the habeas petition and a general assessment of their merits.” Id. at

336. “[I]n a death penalty case any doubts as to whether a COA should issue

must be resolved in the petitioner’s favor.” Ramirez v. Dretke, 398 F.3d 691,

694 (5th Cir. 2005) (alterations and internal quotation marks omitted).

III. DISCUSSION

Fields seeks a COA on the following claims: that (1) he received

ineffective assistance of counsel because of his trial counsels’ failure to: conduct

a competent penalty phase investigation, conduct an adequate investigation

related to the charged crime, and challenge expert testimony about Fields’s

future dangerousness; (2) he was incompetent to waive counsel; (3) his practice

cross-examination of a government witness violated his constitutional rights;

(4) the government violated its Brady obligations by failing to disclose

exculpatory evidence and correct false testimony at trial; (5) Fields is actually

innocent; (6) the district court’s Allen charge was coercive; (7) security

procedures during the trial, including the district court’s requirement that

Fields wear a stun belt, were prejudicial; (8) cumulative error requires that his

convictions be set aside; and (9) the district court erred by failing to grant

discovery or hold an evidentiary hearing. We address each claim in turn.

A. Ineffective Assistance of Counsel

Fields raises several separate claims of ineffective assistance of counsel

(“IAC”). His three principal contentions are that he received ineffective

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assistance because of trial counsels’ failure to: conduct a competent penalty

phase investigation, conduct an adequate investigation related to the charged

crime, and challenge expert testimony about Fields’s future dangerousness.

For the reasons that follow, we deny a COA as to each of Fields’s IAC claims.

1. Penalty Phase Investigation

In his § 2255 petition, Fields asserted that he received ineffective

assistance of counsel because his counsel failed to conduct a competent penalty

phase investigation. He included with his petition “critical mitigation

evidence” that was readily available to his counsel, but which he claimed his

counsel never presented to the jury. The district court reviewed this evidence

and rejected Fields’s IAC claim, finding the evidence contained in his § 2255

petition duplicative of that adduced at trial.

Fields now devotes nearly seventy pages of briefing to this issue,

contending that reasonable jurists would debate the district court’s rejection of

his IAC claim because he has established that his counsels’ performance was

deficient and prejudiced him. Specifically, he contends that: (1) the district

court “applied the wrong legal standard in evaluating his IAC claim”; (2) “trial

counsel performed a sub-standard investigation and therefore presented

inadequate mitigation evidence at trial”; (3) his “§ 2255 Motion presented

voluminous mitigation evidence further demonstrating the ineffectiveness of

counsel[s’] investigation”; and (4) “this new evidence establishes the prejudice

caused by trial counsel[s’] incompetence and the reasonable probability of a

different outcome had counsel been effective.” Fields’s arguments center on

the specific mitigation evidence that he claims his trial counsel should have

uncovered and presented during the penalty phase of the trial. This includes

evidence of the terrible poverty, neglect, abuse, and trauma that he faced while

growing up, his potential brain damage, his history of incarceration, and his

mental illness and family history of mental illness.

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We have reviewed the evidence provided by Fields, and for the reasons

that follow, we conclude that reasonable jurists would not debate the district

court’s holding. Accordingly, we deny Fields’s claim for a COA. 3

To succeed on an IAC claim, a defendant must show that (1) his

“counsel’s representation ‘fell below an objective standard of reasonableness,’”

and (2) the “counsel’s deficient performance prejudiced the defendant.” Roe v.

Flores-Ortega, 528 U.S. 470, 476–77 (2000) (quoting Strickland, 466 U.S. at

688, 694). “[A] court must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.” Strickland,

466 U.S. at 689.

The objective standard of reasonableness is measured “‘under prevailing

professional norms.’” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quoting

Strickland, 466 U.S. at 688). The Supreme Court has long referred to the

American Bar Association’s standards for capital defense work as “guides to

determining what is reasonable.” Wiggins v. Smith, 539 U.S. 510, 524 (2003) 4;

3 At the outset, we note that, contrary to Fields’s contention, the district court applied

the correct standard in conducting its IAC analysis; specifically, the district court applied the

two-part test called for by Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

4 The American Bar Association Guidelines explain that “Penalty Counsel’s duty to

investigate and present mitigating evidence is now well established.” ABA Guidelines for

the Appointment and Performance of Defense Counsel in Death Penalty Cases 10.7, cmt.

(rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 913, 1021 (2003) [hereinafter “ABA

Guidelines”]. The ABA Guidelines provide, in relevant part:

Because the sentencer in a capital case must consider in mitigation, “anything

in the life of a defendant which might militate against the appropriateness of

the death penalty for that defendant,” “penalty phase preparation requires

extensive and generally unparalleled investigation into personal and family

history.” At least in the case of the client, this begins with the moment of

conception. Counsel needs to explore:

(1) Medical history (including hospitalizations, mental and physical illness or

injury, alcohol and drug use, pre-natal and birth trauma, malnutrition,

developmental delays, and neurological damage);

(2) Family and social history (including physical, sexual, or emotional abuse;

family history of mental illness, cognitive impairments, substance abuse, or

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see also Bobby v. Van Hook, 558 U.S. 4, 7–8 (2009). “In assessing the

reasonableness of an attorney’s investigation . . . a court must consider not only

the quantum of evidence already known to counsel, but also whether the

known evidence would lead a reasonable attorney to investigate further.” Id.

at 527.

The Court has explained that “‘[s]trategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete

investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation.’” Id. (quoting

Strickland, 466 U.S. at 690–91). The Court subsequently explained that “[a]

tactical decision is a precursor to concluding that counsel has developed a

reasonable mitigation theory in a particular case.” Sears v. Upton, 130 S. Ct.

3259, 3265 (2010) (per curiam) (internal quotation marks omitted). “‘[A]

defendant who alleges a failure to investigate on the part of his counsel must

domestic violence; poverty, familial instability, neighborhood environment,

and peer influence); other traumatic events such as exposure to criminal

violence, the loss of a loved one, or a natural disaster; experiences of racism or

other social or ethnic bias; cultural or religious influences; failures of

government or social intervention (e.g., failure to intervene or provide

necessary services, placement in poor quality foster care or juvenile detention

facilities);

(3) Educational history (including achievement, performance, behavior, and

activities), special educational needs (including cognitive limitations and

learning disabilities) and opportunity or lack thereof, and activities;

(4) Military service[] (including length and type of service, conduct, special

training, combat exposure, health and mental health services);

(5) Employment and training history (including skills and performance, and

barriers to employability);

(6) Prior juvenile and adult correctional experience (including conduct while

under supervision, in institutions of education or training, and regarding

clinical services)[.]

Id. at 1022–23 (footnotes omitted).

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allege with specificity what the investigation would have revealed and how it

would have altered the outcome of the trial.’” Trottie v. Stephens, 720 F.3d 231,

243 (5th Cir. 2013) (quoting Druery v. Thaler, 647 F.3d 535, 541 (5th Cir.

2011)).

Prejudice is established if “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Rompilla, 545 U.S. at 390 (internal quotation marks omitted). “A

reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Wiggins, 539 U.S. at 534 (internal quotation marks omitted).

“To assess that probability, we consider ‘the totality of the available mitigation

evidence—both that adduced at trial, and the evidence adduced in the habeas

proceeding’—and ‘reweig[h] it against the evidence in aggravation.’” Porter v.

McCollum, 558 U.S. 30, 41 (2009) (quoting Williams v. Taylor, 529 U.S. 362,

397–98 (2000)) (alteration in original).

a. Evidence of Fields’s poverty, neglect, abuse, trauma, and

history of incarceration, as well as social history records and

interviews of additional family members

We conclude that the district court’s denial of relief on Fields’s IAC claim

concerning these areas of mitigation evidence is not debatable by reasonable

jurists. Because it is important to consider the mitigating evidence presented

during the trial’s penalty phase before turning to the evidence in Fields’s

§ 2255 motion, we first review this material.

Fields’s penalty-phase investigation team included his counsel (Scott

Peterson and Robert Swanton), a mitigation specialist (Jane McHan, now Bye),

an investigator (Dan Youngblood), and a psychiatrist (Dr. J. Randall Price). In

his affidavit, Swanton explains that he asked Dr. Price “to assess Mr. Fields’[s]

intelligence and to offer defense strategy opinions regarding Mr. Fields after

his interviews with Mr. Fields.” He “also asked Dr. Price to assess the

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relationship between Mr. Fields’[s] intelligence and his ability to adapt to

prison, if Fields were sentenced to life.” Swanton did not ask Dr. Price to

conduct any neuropsychological testing of Fields, but he “knew Dr. Price had

experience in the field of neuropsychology and would have relied on his opinion

if he felt any such testing was warranted after his interviews with Mr. Fields.”

In the defense’s opening statement, Peterson told the jury that Fields

had a “very disruptive, a very violent childhood,” in which Fields “learned from

the streets” and was exposed to his alcoholic mother’s boyfriend, who beat his

mother and whipped Fields and his siblings with a belt “on a regular basis.”

Peterson talked about Fields’s family’s move to the housing projects in Waco,

and Fields’s exposure there to “the drugs, the violence, the weapons, the

alcoholism,” and “[e]verything that we think of as bad in our society.” He noted

several “traumatic events” in Fields’s early life, including his attempted suicide

with his best friend at age fourteen, during which his friend died; the murder

of another friend; his mother getting shot by her boyfriend; and his grandfather

getting “run over by a drunk driver . . . in Sherman’s presence.” Peterson noted

that Fields had been imprisoned for an extended period, including as a

teenager.

Defense counsel called nine witnesses during the penalty phase of the

trial. Three correctional officers testified about Fields’s recent good behavior.

Jane Bye testified about Fields’s background, including the fact that his

mother was on welfare around the time Fields was born; his abuse by his

mother’s boyfriend, William Bradford; the fact that his mother shot Bradford,

for which she was incarcerated for fifty days; the fact that Fields began

committing crimes the year after his mother was incarcerated; his family’s

difficult move to the projects; Fields’s exposure to drugs, guns, and other types

of crimes in the projects; the lack of supervision of Fields or his siblings;

Fields’s suicide attempt and his friend’s death; the fact that three of his friends

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died in violent fashion in 1989; the fact that Fields witnessed a drunk driver

kill his grandfather; Fields’s multiple attempts to commit suicide while at the

Texas Youth Commission; and the fact that Melvin Swinnie, with whom

Fields’s mother was romantically involved after Bradford, shot her in the head

in 1993.

Next, Fields’s uncle, Vincent Green, testified about Fields’s background,

including the fact that Fields was present when his grandfather was killed;

that the projects were dangerous; and that Fields told Green he wanted to

leave the projects after his family moved there. Fields’s grandfather’s stepson,

Reverend Edward Green, also testified about Fields’s background, including

the details of the day that Fields’s grandfather was killed; the fact that the

projects were a rough neighborhood and not a good environment for raising

children; and his opinion that Fields’s move to the projects was a “traumatic

change.” Adrian Dow, a prior girlfriend, testified that Fields was a positive

influence on their daughter and treated Dow with respect. Fields’s mother,

Alice Swinnie, testified about Fields’s background, including that her former

boyfriend, Bradford, had an alcohol problem and beat her and her children;

that the abuse continued from when Fields was around two years old until he

was ten or eleven; that there were violence and drugs in the projects, to which

Fields was exposed; that Swinnie was absent for extended periods of time

because of the multiple jobs she worked, leaving Fields and his siblings

unsupervised; that she shot Bradford and spent fifty days in prison as a result;

that it was especially hard on Fields when she was imprisoned; and that

another man she dated shot her in the head. She also testified that she

believed Fields could change his life, and do “some good things,” including

continuing his education, if he received a life sentence. Lastly, Dr. Price

testified about Fields’s IQ and ability to adapt to a prison environment.

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As this review makes clear, Fields’s counsel investigated and presented

evidence of Fields’s poverty, neglect, abuse, attempted suicides, exposure to

violence, incarceration while a teenager and later, and the death of close family

members and friends. Thus, while Fields contends that his trial counsel should

have found and presented precisely this type of evidence, the record reflects

that his trial counsel did so.

The mitigating evidence presented generally falls into the category of

“family and social history,” as described by the ABA Guidelines: a category that

includes physical and emotional abuse, domestic violence, poverty, familial

instability, neighborhood environment, peer influence, and “other traumatic

events such as exposure to criminal violence [or] the loss of a loved one.” ABA

Guidelines. As earlier noted, the ABA Guidelines are “guides to determining

what is reasonable.” Wiggins, 539 U.S. at 524. The fact that Fields’s trial

counsel investigated and presented evidence of each of these “family and social

history” sub-categories is a strong indication that the district court’s

conclusion, that counsels’ performance was reasonable, is not debatable.

Fields’s argument that the mitigating evidence his trial counsel

presented was inadequate because it was in “outline form” and “devoid of

detail” is unpersuasive. The fact that the jury unanimously found the presence

of nine mitigating factors, and found by a majority the presence of four other

mitigating factors, belies Fields’s argument. 5 The jury’s answers to the

5 The jury unanimously found the presence of the following nine statutory mitigating

factors:

• The Defendant has lived most of his life without having a significant father

figure.

• The Defendant has spent a large portion of his life incarcerated.

• The Defendant’s periods of incarceration have included significant time in

solitary confinement.

• The Defendant suffered from physical abuse during his formative years[.]

• The Defendant suffered from emotional abuse during his formative years.

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mitigation questions indicate that the jury credited Fields’s witnesses and gave

careful consideration to the challenges that Fields faced. Nonetheless, the jury

concluded that the aggravating factors outweighed the mitigating factors.

Fields analogizes to Wiggins, in which the Court found counsels’

performance deficient where counsel “abandoned their investigation of [the]

petitioner’s background after having acquired only rudimentary knowledge of

his history from a narrow set of sources.” 539 U.S. at 524. Fields explains that

Wiggins “makes it clear that conducting some mitigation investigation does not

suffice,” as opposed to conducting a full investigation.

Wiggins is distinguishable and does not support Fields’s argument. In

Wiggins, “counsel introduced no evidence of Wiggins’ life history” during the

punishment phase of the trial. Id. at 515 (emphasis added). The Court’s focus

was on “whether the investigation supporting counsel’s decision not to

introduce mitigating evidence of Wiggins’ background was itself reasonable.”

Id. at 523. The Court concluded it was not. Id. at 533. Counsels’ investigation

• The Defendant suffered from parental neglect during his formative years.

• The Defendant is the product of an impoverished background which

impaired or hampered his integration into the social and economic

mainstream of society.

• The Defendant’s mother has a history of criminal behavior and

incarceration.

• The Defendant was exposed to the violent deaths of family members, loved

ones, and friends during his formative years.

The jury found the presence of the following four statutory mitigating factors by a majority:

• The imposition of a death sentence would cause emotional injury, harm and

loss to the Defendant’s mother, children and other family members. [11

jurors]

• That as the Defendant ages, his behavioral problems may decrease. [11

jurors]

• The Defendant can be of some productive value in a prison setting. [9

jurors]

• The Defendant grew up in an atmosphere of violence and fear, which

misshaped his perception as to the acceptability or necessity of violent

conduct. [7 jurors]

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relied on only three sources: a psychologist’s examination, a presentence

investigation report, and records kept by the Baltimore City Department of

Social Services (“DSS”) documenting the petitioner’s placement in foster care.

Id. at 523. Counsel did not prepare any social history report, id. at 524, and

did not pursue leads suggested by the DSS documents, including the

petitioner’s mother’s alcoholism or the effect of foster care on the petitioner, id.

at 525. Counsel did not discover the petitioner’s exposure to severe physical

and sexual abuse by his mother and while under the care of foster parents. Id.

at 516, 525, 535. The Court concluded that counsels’ deficient performance

prejudiced the petitioner. Id. at 535–36.

Here, by contrast, counsel investigated and introduced evidence of

Fields’s social history through multiple witnesses, a mitigation specialist

among them. Fields’s counsel investigated numerous sources, unlike the three

sources relied on by trial counsel in Wiggins. Id. at 533. As indicated by Bye’s

testimony, Fields’s trial counsel and mitigation team conducted a thorough

investigation of Fields’s background and social history, which revealed Fields’s

physical abuse; suicide attempts; exposure to drugs, guns, and violence; and

the deaths of friends and family members in violent fashion, among other

topics. 6 Finally, unlike in Wiggins, where trial counsel did not uncover

pervasive sexual abuse, id. at 525, there is no indication here that trial counsel

6 See also Affidavit of Jane Bye (“My duties on this case included investigating Mr.

Fields’[s] social and mental health history, consulting with the attorneys, the investigator,

and other members of the defense team.”; “In the course of my work, I learned that Mr. Fields

had experienced a great deal of trauma in his life. Mr. Fields had witnessed a great deal of

violence and had lost friends and family members in a violent manner. He had attempted

suicide more than once.”); February 3, 2004 Trial Transcript (testimony of Jane Bye)

(describing investigatory steps she undertook to gather information).

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failed to uncover or investigate any such issue in Fields’s background (with the

exception of Fields’s mental health, which we address below). 7

Lastly, Fields contends that the new evidence he offers is “materially

different” from the evidence presented by trial counsel. However, our review

of the evidence presented at trial, when compared to the additional evidence

Fields claims his counsel should have discovered, convinces us that reasonable

jurists would not disagree with the district court’s determination that the new

evidence is not materially different from that presented at trial. Rather, it

offers more detail about each category of mitigation evidence, but duplicates

the evidence already presented.

Accordingly, we conclude that reasonable jurists would not debate the

district court’s holding.

b. Mental illness and family history of mental illness

We similarly conclude that reasonable jurists would not debate the

district court’s rejection of Fields’s IAC claim with respect to his counsels’

performance in presenting mitigating evidence of Fields’s mental illness and

7 Escamilla v. Stephens, No. 12-70029, -- F.3d ---, 2014 WL 1465361 (5th Cir. Apr. 15,

2014), to which Fields directs our attention in a Rule 28(j) letter, is distinguishable on this

basis, as well. There, we granted a COA on the petitioner’s deficient mitigation investigation

claim where counsel neglected to obtain unredacted versions of the petitioner’s Texas Youth

Commission reports, “unreasonably relied upon” the petitioner’s family members’

descriptions of the petitioner’s childhood as “stable,” and “declined to hire a mitigation

specialist, failed to obtain a psychological evaluation for their client until after trial began,

and failed to ensure that the expert evaluating [the petitioner] was aware of his family

background and social history.” Id. at *9. We found prejudice, noting that the “jury that

sentenced [the petitioner] to death was presented with evidence that [the petitioner] was a

‘pretty normal’ kid until age eleven,” despite the fact that the petitioner faced “disadvantages,

instability, and trauma” as a child. Id. at *10. This included the petitioner’s suffering a

“violent and abusive upbringing” and his “untreated substance abuse problems.” Id. at *3.

Here, counsel presented evidence of the disadvantages, instability, and trauma that

Fields faced during his childhood. Unlike in Escamilla, Fields’s jury heard evidence of

Fields’s abusive upbringing, among other topics. Moreover, counsel hired a mitigation

specialist, Jane Bye, who testified at length about Fields’s background. For these reasons,

Escamilla is distinguishable.

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family history of mental illness. The mental illness evidence adduced during

the penalty phase of the trial consisted of the following:

• Fields received psychiatric and psychological treatment while at

the Texas Youth Commission (testimony of Jane Bye);

• Fields’s mother suffered from mental retardation (testimony of

Jane Bye);

• Fields had been diagnosed with an antisocial adolescent behavior

disorder (testimony of Dr. Price on cross-examination).

In Fields’s habeas motion, he presented evidence of diagnoses of bipolar

disorder and post-traumatic stress disorder (“PTSD”), and a family history of

mental illness. In ruling on Fields’s motion, the district court acknowledged

the “relative paucity of evidence regarding [Fields’s] history of mental illness

and his family’s history of mental illness” that was presented during the trial,

as well as the fact that “further information regarding any mental illness

suffered by [Fields] or the genetic predisposition to mental illness based on his

family history could have been mitigating if true.”

With respect to the other categories of mitigation evidence discussed

above, such as abuse and trauma, trial counsel presented some evidence of the

issue, and Fields seeks to have more evidence considered now. With respect to

the mental health evidence, however, trial counsel presented no evidence of

Fields’s bipolar disorder or PTSD, nor of Fields’s family history of mental

illness (beyond the mention of Fields’s mother’s mental retardation, which the

testimony suggested may derive, in part, from her being shot in the head).

Assuming without deciding that counsels’ performance was deficient, we

conclude that the district court’s holding that counsels’ performance did not

prejudice Fields is not debatable. The district court held that Fields could not

establish prejudice because “additional evidence of [Fields’s] specific mental

illnesses could possibly have been utilized as evidence that [Fields] was a

future danger to society,” and the “record reflects that the government had

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presented compelling aggravating evidence regarding [Fields’s] future

dangerousness.” We have considered “the totality of the available mitigation

evidence,” and performed the required reweighing of this evidence against that

in aggravation. Porter, 558 U.S. at 41. The district court’s holding is not

debatable because there is not a probability “sufficient to undermine

confidence in the outcome,” Wiggins, 539 U.S. at 534, that, if trial counsel had

presented the mitigating evidence of mental illness to the jury, the jury would

have reached a different result.

Evidence of mental illness can be mitigating, in that it can influence a

jury’s appraisal of a defendant’s moral culpability. Porter, 558 U.S. at 454.

However, such evidence can also be “double-edged,” as the district court noted,

since it can lead a jury to conclude that a defendant poses a future risk of

violence. Martinez v. Quarterman, 481 F.3d 249, 255 (5th Cir. 2007); see also

Vasquez v. Thaler, 389 F. App’x 419, 429 (5th Cir. 2010); Woods v. Thaler, 399

F. App’x 884, 895 (5th Cir. 2010).

The mental health evidence that Fields asserts should have been

presented may have led the jury to find an additional mitigating factor related

to that evidence. However, even if the jury made such a finding, the jury would

have weighed it, along with the other mitigating factors, against the severe

aggravating factors that led the jury to impose the death penalty in the first

place. 8 Reasonable jurists would not disagree with the district court’s

8 The jury unanimously found the presence of the following statutory aggravating

factors:

• The death, or the injury resulting in death, of the victim, Suncerey

Coleman, occurred during the commission or attempted commission of an

offense, that is, escape.

• The defendant, Sherman Lamont Fields, has previously been convicted of

a federal or state offense punishable by a term of imprisonment of more

than one year involving the use or the attempted or threatened use of a

firearm against another person.

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conclusion that the jury’s calculus would not have changed if such evidence

had been presented.

The jury heard ample mitigating evidence, and found nine statutory

mitigating factors unanimously and another four by a majority. Nonetheless,

the jury concluded that the aggravating factors outweighed these mitigating

factors, and sentenced Fields to death. The jury heard testimony that Fields:

escaped from prison, subsequently murdered Coleman, and later carjacked

Edwards while using a gun; shot a man in the head during a drive-by shooting

in 1991, pled guilty to attempted murder, and received an eight-year prison

sentence for the crime; participated in another drive-by shooting in 2000; raped

and beat his ex-wife, April Fields, threatened to kill her, and at one point drove

her to a dark, wooded area where he made her get out of the car and pulled a

(The jury did not unanimously find the presence of the statutory aggravating factor that

Fields “committed the offense after substantial planning and premeditation to cause the

death of the victim, Suncerey Coleman.”)

Lastly, the jury unanimously found the presence of the following three non-statutory

aggravating factors:

• The defendant, Sherman Lamont Fields, caused injury, harm, and loss to Suncerey

Coleman, her family and children, and her friends as demonstrated by the victim’s

personal characteristics as an individual, including the fact that she was a new

mother to a prematurely born infant, and the impact of her death upon her family,

children and friends.

• Prior to the murder of Suncerey Coleman, the defendant, Sherman Lamont Fields,

participated in attempted murders and other serious acts of violence. Serious acts

of violence means serious criminal activity, causing or intending to cause serious

bodily injury or death; not trivial, accidental, reckless or negligent acts.

• The defendant, Sherman Lamont Fields, is likely to commit serious acts of violence

in the future which would be a continuing and serious threat to the lives and safety

of others, including, but not limited to, inmates and correctional officers in an

institutional correctional settings [sic], as evidenced by the offenses charged in

this case and the statutory and non-statutory aggravating factors alleged in this

case. In addition to the capital offense charged in this case and the statutory and

non-statutory aggravating factors alleged in this case, Sherman Lamont Fields

has engaged in a continuous pattern of violent conduct, has threatened others with

violence, has demonstrated low rehabilitative potential, has made specific

admissions of violence, is an escape risk, and/or has demonstrated lack of remorse.

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gun on her, but decided not to kill her; attempted to escape from prison after

his arrest for Coleman’s murder by removing an air vent in the ceiling; and

engaged in violent conduct and threatened the lives of correctional officers and

their families while he was imprisoned. The jury found, unanimously, that

Fields “participated in attempted murders and other serious acts of violence”

before killing Coleman. The jury concluded, also unanimously, that Fields “is

likely to commit serious acts of violence in the future which would be a

continuing and serious threat to the lives and safety of others.”

Given Fields’s violent crimes, his history of violence, the jury’s finding

that he posed a risk of future violence, and the fact that evidence of mental

illness can be “double-edged,” see Vasquez, 389 F. App’x at 429, Woods, 399 F.

App’x at 897, reasonable jurists would not debate the district court’s holding

that the verdict would not have changed even had the jury heard evidence of

Fields’s mental illnesses. Accordingly, we deny a COA. 9

c. Potential brain damage

Lastly, we conclude that reasonable jurists would not debate the district

court’s rejection of Fields’s IAC claim with respect to his counsels’ performance

in not further investigating or presenting mitigating evidence of brain damage.

Dr. Price, the clinical and forensic psychologist and neuropsychologist who was

a member of Fields’s penalty phase investigation team, stated in his

declaration that he “did not conduct any neuropsychological testing on Mr.

Fields as [he] did not find any suggestion of congenital or acquired brain

damage.” Fields’s counsel, Swanton, stated in his declaration that he “would

have relied on [Dr. Price’s] opinion if he felt any [neuropsychological] testing

9 The fact that the district court issued an Allen charge does not affect this conclusion,

contrary to Fields’s argument. The Allen charge, by itself, does not demonstrate that the jury

was so deadlocked such that the presentation of additional mitigation evidence would have

altered the outcome. (Moreover, as explained infra, Fields’s Allen charge claim is barred.)

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was warranted after his interviews with Mr. Fields.” In his habeas materials,

Fields does not provide any evidence of brain damage; rather, he speculates

that brain damage may have occurred due to his upbringing and attempted

suicides. Based on counsels’ reliance on Dr. Price’s opinion and the lack of

evidence of brain damage offered by Fields, jurists of reason would not debate

the district court’s conclusion that counsels’ performance was not

unreasonable.

2. Investigation of the Homicide

Fields’s second IAC claim is that his counsel failed to conduct an

adequate investigation into the facts of the charged homicide. Specifically, he

asserted in his § 2255 petition that counsel did not interview the following

three potential witnesses:

Renee “Na-Na” Alberta Hampton, who Fields contends was an

eyewitness to the crime. . . . Edward Outley III, who Fields

asserted was an accomplice to the actual killer, Shalaykea

Scroggins. . . . [And] Debra Alexander, a witness that the

Government identified as one who could corroborate Fields’[s]

defense that Scroggins was the actual killer.

He also argued that counsel only investigated and interviewed a small number

of the government’s witnesses. The district court rejected Fields’s claim,

finding that he failed to indicate what facts the uncalled witnesses would have

testified to or how their testimony would have changed the outcome of the trial.

The district court also concluded that Fields failed to establish how additional

investigation or interviews would have uncovered favorable testimony for him

or otherwise altered the trial’s outcome.

Fields suggests that the district court’s holding is debatable because: his

counsel was ineffective; Moore v. Quarterman, 534 F.3d 454 (5th Cir. 2008),

indicates that he should have an opportunity to develop the factual record; the

district court improperly stated that Fields never sought a continuance to

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subpoena witnesses, when in fact the court had foreclosed this possibility; and

the district court failed to address his claim concerning his counsels’

investigation of witnesses on the government’s witness list. We deny a COA

because jurists of reason could not disagree with the district court’s rejection

of Fields’s arguments.

“[A] defendant who alleges a failure to investigate on the part of his

counsel must allege with specificity what the investigation would have

revealed and how it would have altered the outcome of the trial.” Trottie, 720

F.3d at 243 (internal quotation marks omitted). We have explained that

“[c]omplaints of uncalled witnesses are not favored in federal habeas corpus

review because allegations of what a witness would have testified are largely

speculative.” Sayre v. Anderson, 238 F.3d 631, 635–36 (5th Cir. 2001) (internal

quotation marks omitted). To prevail on such a claim, “the petitioner must

name the witness, demonstrate that the witness was available to testify and

would have done so, set out the content of the witness’s proposed testimony,

and show that the testimony would have been favorable to a particular

defense.” Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009).

Reasonable jurists would not debate the district court’s holding because

Fields’s allegations about the testimony of uncalled witnesses are “largely

speculative,” see Sayre, 288 F.3d at 635–36, and he fails to “allege with

specificity” what the investigation would have revealed about Hampton,

Alexander, and Outley, or “how it would have altered the outcome of the trial,”

Trottie, 720 F.3d at 243 (internal quotation marks omitted). Fields’s counsel

attempted to interview Hampton, but she refused to speak with the defense

investigator, as Fields acknowledges in his petition. Moreover, Fields does not

allege with specificity what Hampton would have stated had she testified; he

merely asserts that she was a “potential eyewitness to the murder.” Similarly,

Fields only asserts that Alexander could “corroborat[e] Fields’[s] defense that

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Scroggins was the actual killer.” Fields’s statement that Outley is “alleged to

be an accomplice to the actual killer,” is also conclusory and devoid of specifics.

Furthermore, Outley testified at trial, thereby providing Fields with an

opportunity to cross-examine him about his alleged role in Coleman’s murder.

Fields does not indicate how the testimony of any of the witnesses would have

changed the outcome of the trial, Trottie, 720 F.3d at 243, and therefore, cannot

establish that the district court’s holding is debatable. 10

Moore, to which the district court analogized, does not help Fields. Like

the petitioner there, Fields has not indicated what the additional witnesses

“would have testified to.” Moore, 543 F.3d at 468. The fact that the petitioner

in Moore received an evidentiary hearing does not entitle Fields to one, because

the record is adequate to dispose of his claim, as discussed infra.

Fields’s argument that his counsels’ performance was deficient because

they only interviewed “four of the fifty-nine witnesses” who testified for the

government is unpersuasive. As with Fields’s claims concerning Hampton,

Alexander, and Outley, Fields fails to allege what the investigation of the

additional government witnesses would have revealed or how it would have

altered the trial’s outcome. His conclusory argument and appeal to bare

numbers does not make the district court’s holding debatable. Trottie, 720 F.3d

at 243.

Fields’s contention that his trial counsel only investigated “73 of the 120

witnesses” on the government’s witness list, and that this investigation was

10 The district court’s observation that Fields did not seek a continuance “to interview

and possibly subpoena witnesses” did not affect its conclusion that Fields’s arguments

regarding the uncalled witnesses were devoid of the specific allegations necessary to obtain

relief. Moreover, Fields’s assertion that such a continuance was foreclosed by the district

court’s statement during pretrial proceedings that further delay was “not going to happen” is

misleading; the district court’s point was that Fields could have sought to interview and

subpoena witnesses at an earlier date.

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limited to open-file review of the government’s work, is unconvincing for

similar reasons. At no point does Fields state what his trial counsel would

have discovered from additional investigation of these witnesses. Moreover,

Fields does not indicate how the investigation of these other witnesses would

have altered the outcome at trial. See Trottie, 720 F.3d at 243.

For these reasons, we conclude that no reasonable jurist would debate

the district court’s denial of Fields’s claim.

3. Failure to Adequately Challenge Expert Testimony 11

Fields’s final standalone IAC claim is that his trial counsel failed to

adequately challenge the admissibility of the testimony of Dr. Coons, the

government’s expert on future dangerousness, or to adequately attack Dr.

Coons’s methodology and conclusion that Fields posed a risk of future

dangerousness. For the reasons that follow, we deny a COA on Fields’s claim.

Because our analysis requires careful consideration of the challenges that

Fields’s counsel levied against Dr. Coons at trial, we first review this material.

Dr. Richard Coons, a forensic psychiatrist, testified during the penalty

phase of the trial. Fields, 483 F.3d at 341. Fields’s attorneys learned what Dr.

Coons would testify concerning two days before he testified. Dr. Coons did not

prepare a written report. Before Dr. Coons testified, Fields’s counsel moved to

examine him outside the presence of the jury to make a challenge pursuant to

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which the

district court granted. During the voir dire, Fields’s counsel stated as a fact

that “the American Psychiatric Association [“APA”] has essentially taken the

position that the area of future dangerousness is not one that can be predicted

with any sort of regularity or scientific regularity.” Fields’s counsel questioned

11 As with several of Fields’s arguments on appeal, this one encompasses multiple

claims from his § 2255 petition. We address each claim below. For Fields’s subsequent

multiple-claim arguments, we address the claims as they are grouped on appeal.

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Dr. Coons regarding the empirical data he relied on in reaching his

determination, his awareness “of the studies that indicate that the prediction

of future dangerousness is not reliable,” the lack of peer review of Dr. Coons’s

findings, and the fact that Dr. Coons’s findings cannot be scientifically tested.

Dr. Coons admitted that he did not perform any follow-up studies in connection

with his previous determinations of future dangerousness.

The court overruled Fields’s objections and allowed the government to

call Dr. Coons to testify. As we explained on direct appeal,

After Dr. Coons testified regarding his education and experience,

the prosecutor posed a hypothetical, which consisted of the facts of

the instant capital murder and some of Fields’s background and

criminal history. Based upon this hypothetical, the prosecutor

asked Dr. Coons whether such an individual would constitute a

future danger to others, including persons in a correctional facility.

Dr. Coons responded that there was a “probability of future

violence.”

Fields, 483 F.3d at 341. During cross-examination, Fields’s counsel elicited

several admissions from Dr. Coons regarding his conclusions: Dr. Coons stated

that there is a “considerable subjective element” to his opinion; he could not

identify a study validating an expert’s subjective opinion about a prisoner’s

future dangerousness; he admitted that his opinion had not been subjected to

peer review; he admitted that he could not provide an error rate for his opinion;

he admitted that he did not know the APA’s position on future dangerousness

and that some members of the organization “have difficulty with the issue”; he

admitted that there is a possibility Fields will not be dangerous in the future;

he admitted that he had reviewed Fields’s records, and stated that he did not

know of any instance of Fields “actually physically injuring a guard”; and he

stated that there are studies indicating that as prisoners age, they are less

likely to be violent.

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The district court rejected Fields’s claim, finding that he could not

establish that his counsels’ performance was deficient or prejudicial. We

conclude that reasonable jurists would not debate the district court’s holding,

because Fields fails to show that his trial counsels’ performance was deficient,

either in adequately challenging the admissibility of Dr. Coons’s testimony

before trial, 12 or in adequately attacking Dr. Coons’s methods and conclusion

during trial, such as by introducing evidence to counter Dr. Coons’s

assessment. Fields’s trial counsel made a Daubert challenge to Dr. Coons’s

testimony, performed a voir dire of Dr. Coons, and objected to the admission of

Dr. Coons’s testimony. See Fields, 483 F.3d at 341. Once the district court

overruled counsels’ objections, counsel performed a cross-examination of Dr.

Coons during which counsel elicited several admissions from him regarding his

methodology and the scientific validity of his conclusions.

Considering the record and these circumstances, reasonable jurists

would not debate the district court’s holding that trial counsels’ performance

did not fall below an objective standard of reasonableness. See Flores-Ortega,

528 U.S. at 476–77. Fields’s counsel challenged Dr. Coons’s conclusion on

multiple grounds, revealing its subjectivity and casting doubt on its scientific

or statistical validity. Thus, trial counsel undertook precisely what Fields

argues he failed to do: he attacked Dr. Coons’s methodology and techniques.

Fields’s reliance on Gobert v. State, No. AP-76345, 2011 WL 5881601

(Tex. Crim. App. Nov. 23, 2011), and Coble v. State, 330 S.W.3d 253 (Tex. Crim.

App. 2010), for the proposition that these cases “fully repudiated” Dr. Coons’s

12 Dr. Coons’s qualification as an expert under Daubert is not at issue in this appeal,

since Fields does not brief it and we decided the issue on direct appeal. See Fields, 483 F.3d

at 341–45. Challenges to issues decided on direct appeal are foreclosed from consideration

in a § 2255 motion. United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986). Thus, to the

extent Fields faults his counsel for failing to adequately object to Dr. Coons’s admissibility as

an expert, such a claim is foreclosed by our prior opinion. Id.

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methodology and techniques, and therefore demonstrate that the district

court’s opinion is incorrect, is unavailing. 13 Ineffective assistance of counsel

was not an issue in Coble or Gobert with respect to Dr. Coons’s testimony.

Rather, the primary question in both cases concerning Dr. Coons’s testimony

was its admission pursuant to Texas’s evidentiary rules. Coble, 330 S.W.3d at

270; Gobert, 2011 WL 5881601, at *6–7. As a result, the cases’ bearing here is

limited. Moreover, as earlier noted, we decided the issue of Dr. Coons’s

admissibility on direct appeal, so its consideration is foreclosed here.

13 In Coble, 330 S.W.3d at 270, the court considered the admissibility of Dr. Coons’s

expert testimony about the appellant’s future dangerousness. Although the court agreed

with the appellant that Dr. Coons’s testimony was improperly admitted under Texas Rule of

Evidence 702 because “it was insufficiently reliable,” id., the court concluded that the

admission of the testimony did not affect the appellant’s substantial rights to a fair

sentencing hearing, id. at 286. The court gave five reasons for its conclusion: (1) “[t]here was

ample other evidence supporting a finding that there was a probability that appellant would

commit future acts of violence”; (2) “[t]he same basic psychiatric evidence of appellant’s

character for violence was admissible and admitted, without objection, through other,

entirely objective, independent medical sources—the reports by Dr. Hodges and the military

doctor years before appellant committed these murders”; (3) “Dr. Coons’s opinion was not

particularly powerful, certain, or strong,” coming as it did “after an extremely long and

convoluted hypothetical,” and simply stating, “there is a probability that” the appellant would

be a continuing threat; (4) “Dr. Coons’s testimony was effectively rebutted and refuted by”

another expert, Dr. Cunningham, “who not only relied upon specifically listed scientific

materials and data during his testimony, but who also noted that Dr. Coons and his

methodology had been criticized by both the American and Texas Psychological Association”;

and (5) the prosecution “barely mentioned Dr. Coons during closing argument and did not

emphasize him or his opinions.” Id. at 286–87.

Similarly, in Gobert, the court concluded that the trial judge “abused his discretion in

admitting Dr. Coons’s opinion on future dangerousness in this case for the same reasons that

we held it inadmissible in Coble v. State.” 2011 WL 5881601, at *7 (internal footnote omitted).

However, the court found that the admission was harmless error, explaining, “[g]iven the

overwhelming evidence of appellant’s life-long penchant for violence, the circumstances of

the capital murder, the evidence of his conspiracy to commit capital murder to effectuate his

escape from jail, [and] his own testimony concerning his prior violence in prison and toward

anyone—including his own mother—who angers him, we are confident that this error did not

affect appellant’s substantial rights to a fair sentencing trial.” Id. The court also noted that

the prosecution did not “emphasize or rely upon” Dr. Coons’s testimony during closing

argument. Id.

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It is true that Fields’s counsel did not call an expert to rebut Dr. Coons,

as counsel did in Coble. See Coble, 330 S.W.3d at 282. However, this

distinction does not indicate that the district court’s holding concerning

counsels’ performance is debatable, given that counsel attacked Dr. Coons’s

methodology and conclusion at length on cross-examination.

Fields’s contention that his counsels’ deficient performance is evidenced

by Swanton’s acknowledgement that he “did not conduct any additional

research or review prior transcripts of Dr. Coons’[s] testimony,” and by the fact

that Swanton did not prepare a written challenge to Dr. Coons’s testimony, is

unpersuasive. Swanton’s affidavit indicates that while he did not conduct

additional research, he did not do so because “[he] had previously tried cases

involving Dr. Coons, so [he] was familiar with [Dr. Coons’s] approach to

predicting future dangerousness.” Swanton notes that he “attacked Dr.

Coons’[s] methodology” during his cross-examination, “rather than the ‘facts’

underlying [Dr. Coons’s] opinion.” Similarly, Swanton did not submit a written

challenge to Dr. Coons’s testimony because the government did not prepare a

written Daubert report. Given our review of the record, we cannot say that

reasonable jurists would debate that district court’s holding.

Fields argues that his trial counsel was deficient for failing to introduce

evidence that the Bureau of Prisons was equipped to prevent violence within

its prisons by using super-maximum facilities. The district court rejected this

argument, concluding that Fields’s counsel “reasonably focused” on

establishing that Fields’s violent tendencies would decrease over time,

“[r]ather than presenting evidence” on “super-secure facilities.” Jurists of

reason would not debate the district court’s holding. Fields’s counsel focused

on Fields’s recent improved behavior, and on studies suggesting that his

behavior would continue to improve with age, rather than focusing on the

safeguards available at Bureau of Prisons facilities, which “may have

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reinforced to the jury the idea that [Fields] would always remain a future

danger,” as the district court found. Fields’s counsel called multiple prison

employees who testified that Fields’s behavior had improved during his

imprisonment; defense witness Dr. Price testified that he agreed with studies

showing that behavioral problems decrease with age; and Dr. Coons

acknowledged these studies. Moreover, Dr. Price’s affidavit explains that

Swanton decided “to limit the extent of information presented about [Fields’s]

risk to engage in violent behavior in prison due to his prior behavior while

incarcerated.” Fields has not shown that the district court’s holding is

debatable, or given us reason to second-guess counsels’ strategic decision not

to explore this topic. See Strickland, 466 U.S. at 681.

Fields also fails to establish that the district court’s holding that he was

not prejudiced by any deficient performance of counsel is debatable. The jury

was present for Fields’s counsels’ cross-examination of Dr. Coons, and heard

the challenges to Dr. Coons’s methodology. The jury also heard other

testimony that could have lead it to conclude that Fields posed a risk of future

dangerousness, including testimony about his numerous prior acts of violence,

successful escape from prison, escape attempt after being imprisoned for

Coleman’s murder, and threats to correctional officers. Given these facts, and

the jury’s unanimous findings that Fields had “participated in attempted

murders” in the past and “is likely to commit serious acts of violence in the

future,” reasonable jurists would not debate the holding of the district court

that there is not a probability “sufficient to undermine confidence in the

outcome,” Wiggins, 539 U.S. at 534, that, if Dr. Coons’s testimony had not been

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admitted or counsel had offered a defense expert to rebut Dr. Coons, the jury

would have reached a different result. 14

Fields’s arguments that the admission of Dr. Coons’s testimony “worked

an independent violation” of his Fifth and Eighth Amendment rights and

constituted error “as a matter of federal evidence law under the Federal Death

Penalty Act” are barred because we decided them on direct appeal. Fields, 483

F.3d at 343–45; see Kalish, 780 F.2d at 508. For these reasons, we conclude

that reasonable jurists would not debate the district court’s holding, and we

deny a COA.

B. Competency to Waive Counsel

Fields contends that he suffers from mental illness and was incompetent

to waive counsel, that the district court’s pretrial inquiry into his competence

was constitutionally inadequate, and that his counsels’ performance was

deficient because counsel failed to conduct an adequate investigation into his

competence “despite numerous red flags.” He contends that reasonable jurists

would debate the correctness of the district court’s decision to deny relief. We

conclude that reasonable jurists would not debate the district court’s holding,

and deny a COA.

14 We also note that the factors the Coble court looked to, in concluding that the

admission of Dr. Coons’s testimony was harmless, similarly suggest that any error here was

not prejudicial. As in Coble, “there was ample evidence that there was a probability that

[Fields] would commit future acts of violence quite apart from Dr. Coons’s testimony.” 330

S.W.3d at 281. Additionally, “Dr. Coons’s opinion was not particularly powerful, certain, or

strong,” coming as it did “after an extremely long and convoluted hypothetical,” and simply

stating “there is a probability that” Fields would be a continuing threat. Id. at 286. Lastly,

as in Coble, “the prosecution did not rely heavily upon Dr. Coons’s testimony during its

closing arguments.” Id. at 283. The government did not mention Dr. Coons or his research

in the closing argument, and instead reminded the jury of Fields’s past violent conduct, and

asked the jury consider the “track record of [Fields’s] choices,” and his “pattern of conduct,”

in determining if he posed a risk of future dangerousness. These facts belie Fields’s argument

that Dr. Coons was “the focal point” for the government’s case about his future

dangerousness.

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1. Factual Background

While awaiting trial, Fields moved to appear pro se on multiple

occasions, only to subsequently withdraw his motions. 15 Again during the

pretrial hearing, Fields requested to waive counsel and proceed pro se. He

informed the district court that he felt his appointed counsels’ “actions are

suspicious and I think they’re working with the prosecutor instead of working

for me.” He stated that his counsel “prepared a strategy . . . in an attempt to

try to get me a life sentence when I repeatedly profess my innocence.” The

district court indicated that it would not appoint replacement counsel at that

point in the proceedings. The district court informed Fields of his right to

represent himself, and indicated that it would need to ensure that Fields was

waiving his right to counsel voluntarily and intelligently. The district court

proceeded to evaluate Fields’s understanding of the nature of the proceedings

and his decision to proceed pro se. The district court cautioned Fields against

taking such a course of action, and twice asked Fields if he “still want[ed] to

represent [him]self,” to which Fields replied in the affirmative.

The government suggested that the district court arrange for an

evaluation of Fields’s competency and capacity, in light of the defense’s offering

of diminished capacity as a possible mitigation instruction. Fields’s defense

counsel agreed, requesting that the court arrange for Fields to be examined

“out of an abundance of caution.” Fields’s counsel noted that Dr. Price had

evaluated Fields, and determined that he had an IQ of 114 and was “fairly

15 Fields moved to “represent self” on September 25, 2002, and moved to appear pro se

on March 4, 2003. He moved to withdraw his motion to appear pro se on April 30, 2003,

which the district court granted, thereby mooting his motion to “represent self.” Fields again

moved to appear pro se on August 12, 2003. The district court held a motion hearing on

Fields’s request, at which “Defendant stated that he no longer pursues this request.” The

docket sheet indicates that “Defendant was warned by the Court that if he decides to

complain about his attorneys in the future it would not delay or continue his trial date.”

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bright.” The court noted that the current proceedings were taking place on a

Friday afternoon, with voir dire set to begin the following Monday morning.

Nonetheless, the district court arranged for an evaluation of Fields by a

psychiatrist, Dr. Stephen Mark, at 8:00 a.m. that Monday morning, prior to

the beginning of voir dire. Dr. Mark evaluated Fields and reported that Fields

“has had some history of depression in the past and maybe some now with his

current situation, but it does not interfere with the competency.” Dr. Mark

stated that Fields

is not psychotic. He is not organic. He appeared able to think

through questions and not distract. He appeared able to make

decisions adequately for himself. In terms of the specific question

can he make the decision to represent himself and be competent,

the answer is yes. He is competent to do so.

The district court permitted Fields to proceed pro se, with his appointed

counsel acting as standby counsel.

2. Applicable Law

The Constitution “does not permit trial of an individual who lacks

‘mental competency.’” Indiana v. Edwards, 554 U.S. 164, 170 (2008). “It has

long been accepted that a person whose mental condition is such that he lacks

the capacity to understand the nature and object of the proceedings against

him, to consult with counsel, and to assist in preparing his defense may not be

subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 171 (1975); see also Dusky

v. United States, 362 U.S. 402, 402 (1960) (per curiam) (“[T]he test must be

whether he has sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding—and whether he has a rational

as well as factual understanding of the proceedings against him.”) (internal

quotation marks omitted). In Faretta v. California, 422 U.S. 806, 807 (1975),

the Court held that the Sixth and Fourteenth Amendments include a “right to

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proceed without counsel when” a criminal defendant “voluntarily and

intelligently elects to do so.”

In Edwards, the Court addressed “the relation of the mental competence

standard to the right of self-representation.” 554 U.S. at 170. The Court

clarified that “the Constitution permits States to insist upon representation by

counsel for those competent enough to stand trial under Dusky but who still

suffer from severe mental illness to the point where they are not competent to

conduct trial proceedings by themselves.” Id. at 178. The Court noted that

“the trial judge . . . will often prove best able to make more fine-tuned mental

capacity decisions, tailored to the individualized circumstances of a particular

defendant.” Id. at 177. We have explained that Edwards’s “new rule applies

only in the ‘exceptional’ situation where a defendant is found competent to

stand trial and elects to appear pro se, but is so severely mentally ill that his

self-representation threatens an improper conviction or sentence.” Panetti v.

Stephens, 727 F.3d 398, 414 (5th Cir. 2013), petition for cert. filed (Jan. 27,

2014) (No. 13–8453). Edwards is also “permissive, allowing the state to insist

on counsel, but not requiring that the state do so.” Id. In Panetti, we concluded

that Edwards is not retroactively applicable on collateral review. Id. at 414–

15.

There are “‘no fixed or immutable signs which invariably indicate the

need for further inquiry to determine fitness to proceed.’” United States v.

Flores-Martinez, 677 F.3d 699, 706 (5th Cir. 2012) (quoting Drope, 420 U.S. at

180). Rather, “‘the question is a difficult one in which a wide range of

manifestations and subtle nuances are implicated.’” Id. (quoting Drope, 420

U.S. at 180). “‘[I]n determining whether the court should order a mental

competency hearing, the court must consider three factors: (1) the existence of

a history of irrational behavior, (2) the defendant’s demeanor at trial, and (3)

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prior medical opinion on competency.’” Id. at 706–07 (quoting United States v.

Ruston, 565 F.3d 892, 902 (5th Cir. 2009)).

3. Analysis

a. Fields’s competency to waive counsel

The district court rejected Fields’s competency arguments, finding his

waiver of counsel intelligent and voluntary, and explaining that his “demeanor

before the Court at the pretrial hearing and in previous hearings reflects that

he had the ability to consult with his lawyer and the Court with a reasonable

degree of rational understanding and that he had a rational understanding of

the criminal proceedings against him.” The district court noted that Fields’s

pro se filings showed that “he rationally understood the criminal proceedings.”

As a result, the court concluded that Fields was competent to waive his right

to counsel.

Fields argues that the district court failed to reevaluate its competency

conclusion and rejected Fields’s new evidence, and that he is therefore entitled

to relief on his claim. He contends that his mental illnesses and their

symptoms, including “paranoid ideation, delusional thinking, irritability,

impaired judgment and impulse control, and grandiosity,” impaired him to

such a degree that he did not meet the Dusky standard for mental competency,

rendering him unfit to “stand trial, waive counsel and proceed with his own

defense.” He asserts that the evidence from his § 2255 motion supports this

argument, including: a declaration from Dr. George Woods, a psychiatrist,

opining that Fields’s symptoms “impaired his competency to waive his right to

counsel” and that Fields was not “competent to waive counsel and/or represent

himself”; documents reflecting that Fields was hospitalized at a psychiatric

hospital as a teenager, during which time he was diagnosed with PTSD and

evaluated as potentially having bipolar disorder; and his inmate grievance

reports, submitted while he was awaiting trial, which contain complaints that

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his prison guards were conspiring to murder him, and “clearly evidence

paranoid ideation and delusional thinking.”

We conclude that jurists of reason would not disagree with the district

court’s holding, because Fields does not show that his competency fell below a

standard that would have required the district court to deny his request to

represent himself. Dr. Woods’s declaration, executed in 2010, six years after

Fields’s trial, is not sufficient to establish that the district court’s careful and

reasoned decision that Fields was competent to waive counsel is debatable. We

note that the district court reached its conclusion after considering Fields’s pro

se oral motion for access to a law library and his motion to change venue,

questioning Fields about his decision to waive counsel, speaking with Fields’s

counsel about his competency, arranging for Fields’s psychiatric evaluation by

Dr. Mark, and considering the results of Dr. Mark’s evaluation. Reasonable

jurists would not debate the district court’s conclusion that its inquiry into the

issue demonstrated that Fields “ha[d] sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding,” and a “rational

as well as factual understanding of the proceedings against him.” Dusky, 362

U.S. at 402. Considering all the circumstances, and acknowledging that “the

trial judge . . . will often prove best able to make more fine-tuned mental

capacity decisions, tailored to the individualized circumstances of a particular

defendant,” Edwards, 554 U.S. at 177, we conclude that the district court’s

holding is not debatable.

Fields argues that his delusional belief that his attorneys were

conspiring against him was not rational, and that therefore, he did not have

the requisite rational understanding of the proceedings against him or the

present ability to consult his attorney. This argument is unpersuasive.

Reasonable jurists would not disagree with the district court’s conclusion that

the factors noted above—Fields’s demeanor at trial, his pro se motions, and Dr.

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Mark’s evaluation—indicate that Fields was competent to waive his right to

counsel.

Fields’s reliance on documents from his teenage years suggesting PTSD

and bipolar disease, and his inmate grievance reports, is unavailing. The

documents regarding Fields’s psychiatric evaluations as a teenager date from

1989. As such, they do not call into question the district court’s conclusion

about Fields’s rational understanding of the proceedings against him, or his

ability to consult with his counsel, at the time of his trial twenty-five years

later. Similarly, the inmate grievance reports date from April through July of

2003, approximately six months before Fields’s trial began in January 2004,

and likewise would not cause reasonable jurists to disagree with the district

court’s conclusion about Fields’s competency at the time of trial.

Fields’s reliance on Edwards is also unavailing. The district court

concluded that Edwards had no bearing, because the case provides the trial

court with “discretionary authority” to consider competency under a higher

standard, but does not so require. Reasonable jurists would not disagree with

the district court. As we have recently explained, “in Edwards, the Supreme

Court addressed the constitutionality of the denial of the right to self-

representation; the Court did not address the competency of a defendant who

is granted the right to self-representation, nor did it suggest that a trial court

which allows a defendant to represent himself is required to first ascertain that

he is capable of doing so.” United States v. West, -- F. App’x ---, 2014 WL

1797725, at *1 (5th Cir. May 7, 2014); see also Panetti, 727 F.3d at 414 (noting

that Edwards is permissive). Thus, reasonable jurists would not debate that

Edwards is not applicable here. Even assuming Edwards is relevant, Fields

has not shown that his competency fell below a standard that would have

required the district court to deny his request to represent himself. See id.;

Edwards, 554 U.S. at 178.

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Based on the lack of probative evidence tending to show incompetence,

we cannot say that reasonable jurists would find the district court’s decision

debatable or wrong. See Wilkins v. Stephens, -- F. App’x ---, 2014 WL 1202524,

at *10 (5th Cir. Mar. 25, 2014).

b. Adequacy of the district court’s pretrial inquiry

Fields contends that the district court erred by relying on Fields’s

counsels’ failure to contest competency “as proof of Fields’[s] competency”;

relying on Dr. Mark’s evaluation, which was “wholly uniformed”; relying on Dr.

Price’s evaluation of Fields’s academic potential; conducting a hearing of only

one minute in duration; and failing to consider if Fields’s waiver of counsel was

rational. The district court rejected Fields’s arguments, holding that Dr.

Mark’s thirty-minute examination, “coupled with” Fields’s demeanor at trial,

his attorneys’ observations, and Dr. Price’s evaluation focusing on his

intelligence, did not deprive Fields of his constitutional rights. Fields suggests

that the district court’s holding is wrong, entitling him to relief.

For the reasons noted supra, reasonable jurists would not debate the

district court’s holding that Fields was competent to waive his right to counsel.

Similarly, reasonable jurists would not debate the district court’s

determination that its pretrial inquiry into Fields’s competency was adequate.

The district court considered several factors in finding Fields competent,

including its interactions with him, his pro se motions, counsels’ interactions

with him, and Dr. Mark’s evaluation. The district court did not rely on any

single factor as “proof” of Fields’s competency.

Fields’s argument that the hearing does not satisfy due process because

it lasted only one minute is unavailing. In fact, the competency hearing was

spread over two days, and involved the district court consulting Fields, counsel

for both sides, and Dr. Mark. Contrary to Fields’s contention, in rejecting his

§ 2255 petition, the district court did consider whether his waiver was rational,

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and concluded that Fields had the ability to consult with counsel “with a

reasonable degree of rational understanding and that he had a rational

understanding of the criminal proceedings against him.” For these reasons,

reasonable jurists would not debate the district court’s holding that its inquiry

did not violate Fields’s constitutional rights.

c. Ineffective assistance of counsel

Fields contends that his counsels’ performance was deficient because

counsel failed to conduct an investigation into his competence. The district

court held that counsels’ performance “was neither deficient nor prejudicial.”

Given our analysis, supra, Fields cannot establish prejudice, even if his

counsels’ performance had been deficient. See Strickland, 466 U.S. at 700

(“Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim.”). Thus, Fields has not

shown that reasonable jurists would disagree with the district court’s holding.

C. Practice Cross-Examination

Fields argues that the district court required him to reveal privileged

trial strategy in violation of his Fifth, Sixth, and Eighth Amendment rights

when it compelled him to conduct a “dry run” of his cross-examination of

Scroggins. We deny a COA because reasonable jurists would not debate the

district court’s conclusion that the practice cross-examination (“dry run”) did

not violate Fields’s constitutional rights.

1. Factual Background

During the trial, the government called Shalaykea Scroggins to the

witness stand. As the district court explained, Scroggins testified that:

(1) she was [Fields’s] girlfriend; (2) she knew that the murder

victim, Ms. Coleman, was [Fields’s] other girlfriend; (3) she was

aware that [Fields] had implicated her as the murderer; (4) she

had never threatened Ms. Coleman with bodily injury; and (5)

[Fields] admitted to Ms. Scroggins that he had murdered Ms.

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Coleman by luring her away from the hospital, driving her to

Downsville, and then shooting her twice in the head.

Fields then conducted his cross-examination of Scroggins. Fields’s cross-

examination resulted in numerous objections that the court sustained based

on form, relevancy, and content. Fields argued with the witness, asked

questions that were repetitive, and sought to elicit hearsay testimony. Fields

tried to read from documents not in evidence. Fields offered his own

commentary on matters and made arguments under the guise of asking

questions.

The district court dismissed the jury, and determined that it would

proceed by having Fields read questions to the witness from his prepared list

of questions, after which the government would object if it had any objections.

If the court sustained the objection, Fields would remove the question from his

list of questions to ask the witness before the jury the next day. The district

court explained, “There’s no point in having the jury sit here for an

interminable length of time listening to questions that are objected to and the

objection is sustained when they’re merely an attempt by you to get things into

the record improperly, Mr. Fields.” The district court concluded the dry run

once it determined that Fields had asked all his prepared questions, and the

dry run had reached a point where “Fields is not only discussing with Mr.

Swanton every single question, he’s asking half a question and then going back

to Mr. Swanton to find out what the other half of the question is supposed to

be,” which is “entirely counterproductive” and “something that we can’t do in

front of the jury tomorrow.”

Fields completed his cross-examination of the witness without incident

the next day, January 28, 2004.

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2. Applicable Law

The Sixth Amendment entitles a defendant to “‘an opportunity for

effective cross-examination, not cross-examination that is effective in whatever

way, and to whatever extent, the defense might wish.’” United States v. Hitt,

473 F.3d 146, 156 (5th Cir. 2006) (quoting Delaware v. Van Arsdall, 475 U.S.

673, 679 (1986)). “‘The Confrontation Clause . . . is satisfied where defense

counsel has been permitted to expose to the jury the facts from which jurors,

as the sole triers of fact and credibility, could appropriately draw inferences

relating to the reliability of the witness.’” Id. (quoting United States v. Restivo,

8 F.3d 274, 278 (5th Cir. 1993)).

“Trial courts retain wide discretion ‘to limit reasonably a criminal

defendant’s right to cross-examine a witness based on concerns about, among

other things, harassment, prejudice, confusion of the issues, the witness’

safety, or interrogation that is repetitive or only marginally relevant.’” Id.

(quoting Michigan v. Lucas, 500 U.S. 145, 149 (1991)) (internal quotation

marks omitted); see also United States v. Mizell, 88 F.3d 288, 292 (5th Cir.

1996) (“A district court has broad discretion to reasonably restrict cross-

examination; however, this discretion is limited by the Sixth Amendment.”).

Federal Rule of Evidence 611 provides: “The court should exercise

reasonable control over the mode and order of examining witnesses and

presenting evidence so as to: (1) make those procedures effective for

determining the truth; (2) avoid wasting time; and (3) protect witnesses from

harassment or undue embarrassment.” Fed. R. Evid. 611(a). The rule “permits

courts to preclude questions that obscure truth because they are ambiguous,

confusing, misleading, argumentative, compound, or assume facts not in

evidence.” 28 Charles Alan Wright, et al., Federal Practice & Procedure § 6164

(2d ed. 2014) (footnotes omitted). “Subdivision (a) also provides a basis for

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controlling questions that waste time because they are collateral, cumulative

or repetitive, have been asked and answered, or call for speculation.” Id.

3. Analysis

The district court denied relief on Fields’s claim, holding that the dry run

did not violate Fields’s constitutional rights because it was necessary “to filter

out” his “improper and repetitious questions to avoid the needless consumption

of time.” Reasonable jurists would not debate the district court’s determination

that its decision to perform the dry run was proper under the circumstances

and did not violate Fields’s rights. The district court’s decision to conduct the

dry run fell within its discretion “to limit reasonably a criminal defendant’s

right to cross-examine a witness based on concerns about . . . harassment,

prejudice, confusion of the issues . . . or interrogation that is repetitive or only

marginally relevant,” Hitt, 473 F.3d at 156 (internal quotation marks omitted),

and to “exercise reasonable control over the mode and order of examining

witnesses and presenting evidence,” Fed. R. Evid. 611(a). The district court

conducted the dry run because of Fields’s repeatedly unsuccessful efforts to

cross-examine Scroggins without offering his own arguments, seeking to

introduce hearsay, or reading from exhibits that had not been introduced and

were of questionable relevancy, among other issues. The district court

explained that there would be “no point in having the jury sit here for an

interminable length of time” while Fields attempted “to get things into the

record improperly.” The district court noted that Fields was “taking the

opportunity to make speeches and to make statements that [he] otherwise

wouldn’t be able to make and that’s not appropriate.” These statements

indicate that the district court determined it was necessary to perform a dry

run to avoid wasting time and permitting Fields to continue to “testify” through

his cross-examination. Accordingly, reasonable jurists would not debate the

district court’s holding.

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Fields was still accorded the opportunity to perform his cross-

examination of Scroggins. See Hitt, 473 F.3d at 156. The jury heard

Scroggins’s answers to Fields’s questions, and was able to evaluate Scroggins’s

demeanor and credibility over the course of two days of direct and cross-

examination testimony. Thus, Fields was able to “expose to the jury the facts

from which jurors, as the sole triers of fact and credibility, could appropriately

draw inferences relating to the reliability of the witness.” Id.

Fields claims that the jury was denied the opportunity to judge

Scroggins’s credibility based on “fresh and candid reactions.” However, Fields

had the opportunity to develop additional questions with his standby counsel

after the dry run, and apparently took that opportunity. See January 27, 2004

Trial Transcript (District court: “Y’all can stay up all night, if you can convince

[your standby counsel] to do that, trying to construct the questions that you

want to ask.”). Thus, many of the questions that Fields asked Scroggins in

front of the jury on January 28, 2004, were not asked during the January 27

dry run. 16 For these new questions and impeachment evidence, the jury had

an opportunity to evaluate Scroggins’s candid reaction, since she had not been

asked these questions before.

As to the questions that Fields asked during the dry run and then again

in front of the jury, Scroggins’s reactions on January 28 admittedly were not

as “fresh and candid” as they might have been. However, given the

circumstances, including Fields’s numerous attempts to testify and argue with

Scroggins under the guise of conducting a cross-examination, reasonable

jurists would not debate the district court’s holding that its decision to conduct

16 Compare January 28, 2004 Trial Transcript with January 27, 2004 Trial Transcript

(asking questions not asked the prior day about the witness’s relationship with Edward

Outley; the evening of November 6, 2001, when the witness saw Fields “scraping something

off of [his] clothes”; the date the witness was arrested; and Fields’s phone call to the witness

after the murder; Fields also offered a letter into evidence to impeach the witness).

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the dry run in Scroggins’s presence was not unreasonable. See Hitt, 473 F.3d

at 156. Additionally, we note that the dry run only became necessary because

of Fields’s decision to represent himself, and “[t]he right of self-representation

is not a license to abuse the dignity of the courtroom,” nor “is it a license not to

comply with relevant rules of procedural and substantive law.” Faretta, 422

U.S. at 834 n.46.

Fields’s reliance on Wardius v. Oregon, 412 U.S. 470, 479 (1973), is

misplaced. As Fields notes, the Court in Wardius stated that “discovery must

be a two-way street,” id. at 475, and that “[i]t is fundamentally unfair to

require a defendant to divulge the details of his own case while at the same

time subjecting him to the hazard of surprise concerning refutation of the very

pieces of evidence which he disclosed to the State,” id. at 476. However, the

Court in Wardius addressed a state statute that required defendants to reveal

details of any alibi defense in advance of trial, while granting “no discovery

rights to criminal defendants.” Id. at 475. The issue here does not concern

pre-trial discovery. Moreover, because the government had already performed

its direct examination when Fields conducted his cross-examination and dry

run, he was not required to “divulge the details of his own case” while facing

any risk of surprise concerning the government’s refutation of the evidence on

which he planned to rely. Id.

Although Fields argues that the government’s objections “created a

severe risk of witness coaching,” he does not contend that witness coaching

took place. Furthermore, there is no indication of coaching, such as through

baseless objections or the use of non-verbal cues. 17 In fact, the prosecution’s

objections were not baseless, and nearly all were sustained.

17 See, e.g., United States v. Jones, 180 F.3d 261, 1999 WL 274441, at *3 & n.4 (5th

Cir. Apr. 15, 1999) (unpublished table decision) (finding no prosecutorial misconduct where

defendant accused the government of coaching the witness by using “nods of the head”);

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Fields also claims that his appellate counsel’s failure to raise the issue

on direct appeal constitutes ineffective assistance. The district court denied

relief on this claim because it concluded that Fields could not show that his

counsels’ conduct was deficient or prejudicial in light of the district court’s

rejection of his claim on the merits. Given our analysis, supra, reasonable

jurists would not debate the district court’s holding. See Strickland, 466 U.S.

at 700.

We conclude that reasonable jurists would not debate the district court’s

determination that Fields failed to establish that the dry run violated his

constitutional rights, and deny a COA on this basis.

D. Brady Violations

Fields argues that the government failed to disclose critical

impeachment evidence. Specifically, he contends that (1) the government

committed Brady violations by failing to disclose the scope of Edward Outley’s

immunity deal or to disclose Homero DeLeon’s handwritten notes; (2) the

government failed to correct a false statement Outley made at trial; and (3)

DeLeon acted under government direction in violation of Fields’s Sixth

Amendment rights. We conclude that a COA should not issue because

reasonable jurists could not disagree with the district court’s conclusion that

the government did not commit any Brady violations.

1. Factual Background

Before Fields’s trial, the government sent a letter to Edward Outley’s

attorneys, dated January 2, 2004 (“2004 Letter”), explaining the agreement

between the government and Outley. The 2004 Letter concerns Outley’s

McClaran v. Plastic Indus., Inc., 97 F.3d 347, 360 (9th Cir. 1996) (finding no misconduct

where party asserted that attorney “attempt[ed] to coach witnesses with baseless

objections”).

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cooperation in the investigation into Coleman’s murder, and states that it

“certif[ies] that your client is considered a witness in the case and not a target

or subject of the investigation.” The 2004 Letter continues:

Correspondingly, any statement or testimony, or evidence

derived directly or indirectly from the statements or testimony

which your client provides regarding this matter or any other

matter into which he may be inquired by any agent or attorney

associated with this case or any testimony furnished to a grand or

petit jury will not be used against him in this or any further

criminal proceeding, either federal or state, except a prosecution

for perjury or otherwise making a false statement.

This grant of immunity is completely conditional upon Mr.

Outley’s truthful, candid cooperation and is voidable by the United

States in the event it can demonstrate to a court that Mr. Outley

has made a material misstatement of fact to the Court or ceases to

cooperate in this case.

Fields received the 2004 Letter as part of the discovery process. In Fields’s

§ 2255 motion, he includes an affidavit from Outley stating that Outley “did

not want to testify against Mr. Fields.” In particular, the affidavit stated:

The only reason I testified is because the Government gave me

complete immunity for any charges. Thus, because I could not be

prosecuted for any crimes, I had to testify—my attorneys told me

I could not take the Fifth on anything.

At trial, Outley testified that he provided Fields with a gun, but did not

shoot Coleman and was not present when she was shot. On cross-examination,

Fields asked Outley the following question: “And, Mr. Outley, at one point --

Mr. Outley, have [sic] the government made you any promises, or --.” Outley

responded, “No. The government hasn’t made me any promises.”

Turning to Homero DeLeon, in November 2003, Assistant United States

Attorney Gregory Gloff and Special Agent Douglas J. Kunze, with the Bureau

of Alcohol, Tobacco, Firearms and Explosives, interviewed DeLeon. DeLeon

stated that he had been Fields’s cellmate in November 2001, prior to Fields’s

escape, and then again in November 2002. DeLeon stated that Fields told him

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how he escaped from prison by digging “through a vent in the ceiling with a

light switch plate and metal part from a shower.” DeLeon stated that Fields

told him that he had killed his girlfriend, and told him “about a tree where he

killed his girlfriend.”

At trial, DeLeon testified along similar lines. He stated that he had

previously provided testimony for the government in a different case in order

to receive a reduced sentence. He replied affirmatively when asked if the

government had filed a motion to reduce his existing sentence for cooperating

in Fields.

In Fields’s § 2255 motion, he included the affidavit of Rick Ojeda, a

former FBI agent and police officer, who interviewed DeLeon in December

2008. Ojeda stated that during the interview, DeLeon reported that Fields

informed him that “Fields escaped from the jail by crawling through a vent,

carjacked an old lady and drove to the hospital, picked up his girlfriend, and

then drove her to a deserted location where he shot her.” Ojeda stated that

DeLeon informed him that he had prepared ten or eleven pages of handwritten

notes based on his conversations with Fields, which he sent to Assistant United

States Attorney Gloff without retaining a copy.

2. Analysis

The district court held that Fields failed to establish that the government

violated his rights. We conclude that reasonable jurists would not debate the

district court’s holding. Our analysis will proceed in three parts: (1) the Brady

violations, including the government’s alleged failure to disclose the scope of

Outley’s immunity deal and to disclose DeLeon’s notes; (2) the government’s

failure to correct Outley’s statement at trial; and (3) the claim that DeLeon

acted under government direction.

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a. Brady violations

i. Government’s alleged failure to disclose Outley’s immunity

agreement

The district court denied relief on Fields’s claim, explaining that Fields

did not provide “any evidence of such a broad and undisclosed immunity

agreement,” and holding that the government fulfilled its obligations by

disclosing the 2004 Letter to Fields. The district court concluded that even if

a broader immunity agreement existed, Fields could not establish a reasonable

probability that the evidence would have changed the result of the proceeding.

We deny a COA on Fields’s claim because jurists of reason would not disagree

with the district court’s holding.

“There are three components to a Brady violation. First, the evidence

must be favorable to the accused, a standard that includes impeachment

evidence. Second, the State must have suppressed the evidence. Third, the

defendant must have been prejudiced.” United States v. Hughes, 230 F.3d 815,

819 (5th Cir. 2000). To establish the third element, a defendant must show

that the evidence “could reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict.” Id. (internal

quotation marks omitted). “The defendant has the burden to establish a

reasonable probability that the evidence would have changed the result.” Id.

Fields cannot show that the government suppressed any evidence. He

does not establish that Outley received a broader immunity agreement than

that outlined in the 2004 Letter, which the government provided to Fields

before trial. Taken alone, Outley’s statement in his affidavit that he only

testified “because the Government gave me complete immunity for any

charges” would not cause reasonable jurists to debate the district court’s

holding. As the government suggests, it is likely the case that “[t]o the extent

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Outley’s description of immunity differed from the immunity described in the

January 2, 2004 letter, those differences are . . . the result of confusion.”

Even if the government failed to disclose a broader immunity grant, it is

not debatable that Fields cannot show prejudice. The jury already knew that

Outley was testifying in part because he was concerned that he might face

additional criminal charges. Knowing the extent of the scope of Outley’s

immunity would not have affected the jury’s perception of Outley or his

testimony. Moreover, the jury heard substantial evidence from other witnesses

supporting Fields’s convictions, which Fields has not rebutted or shown to be

unreliable. Accordingly, Fields has not established that jurists of reason would

debate the district court’s holding that there is no reasonable probability that

the allegedly suppressed evidence would have changed the result of the

proceeding.

ii. Government’s alleged failure to disclose DeLeon’s notes

The district court denied relief on Fields’s claim, concluding that the

missing notes did not constitute favorable evidence because they would largely

corroborate “DeLeon’s compelling testimony at trial as to [Fields’s] confession

to murdering Ms. Coleman.” We deny a COA on Fields’s claim because jurists

of reason would not disagree with the district court’s holding. Again, Fields

cannot show that the government suppressed any evidence. DeLeon wrote a

letter to the prosecutor in February 2003, describing his potential testimony,

in which he did not reference the existence of any notes. Similarly, Assistant

United States Attorney Gloff and Special Agent Kunze interviewed DeLeon in

November 2003, and their report did not mention the existence of any notes.

Coupled with the government’s use of open-file discovery, these facts strongly

indicate that there were no notes.

The district court held that even if the notes could have shown

inconsistencies in DeLeon’s testimony, no prejudice resulted because other

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witnesses provided compelling testimony to support Fields’s convictions, and

Fields thus failed to show there was a reasonable probability that the

proceeding would have been different. Reasonable jurists would not debate the

district court’s holding. Fields places much import on discrepancies between

the facts in DeLeon’s report to Ojeda and DeLeon’s testimony. However, these

inconsistencies concern the timeline of events, and not the occurrence of the

events. The testimony at trial established that Fields did, in fact, escape from

jail, carjack a woman, pick up Scroggins from a hospital, and kill her in a

deserted location, as DeLeon reported to Ojeda. The carjacking took place

later, as did Fields’s attempted escape through a vent, but DeLeon’s statement

that each of these events occurred is correct. Therefore, Fields has not shown

that the district court’s conclusion, that there is no reasonable probability

DeLeon’s missing notes would have changed the trial’s outcome, is debatable.

For these reasons, we deny a COA as to Fields’s Brady claims.

b. Government’s failure to correct Outley’s statement at trial

The district court rejected Fields’s argument, holding that Fields could

not establish that Outley’s testimony was false and that the government knew

it was false, given that Fields never asked the specific question whether Outley

“had received any promises in exchange for his testimony against” Fields. The

district court also concluded that Outley’s testimony was not material. We

deny a COA because Fields has not shown that reasonable jurists would debate

the district court’s holding.

“‘[A] conviction obtained through use of false evidence, known to be such

by representatives of the State, must fall under the Fourteenth Amendment

. . . . The same result obtains when the State, although not soliciting false

evidence, allows it to go uncorrected when it appears.’” United States v.

O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997) (quoting Napue v. Illinois, 360 U.S.

264, 269 (1959)). “A Napue violation may occur not only when the prosecuting

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attorney knows that a witness’s testimony is false, but also when another

government attorney knows of the false testimony and does nothing to correct

it.” Id. “To establish a due process violation based on the government’s use of

false or misleading testimony, [a defendant] must show that (1) the testimony

in question was actually false; (2) the testimony was material; and (3) the

prosecution had knowledge that the testimony was false.” United States v.

Webster, 392 F.3d 787, 801 (5th Cir. 2004).

Assuming without deciding that Outley’s statement that “[t]he

government hasn’t made me any promises” is false in light of his immunity

deal, reasonable jurists would not debate the district court’s holding because

Outley’s testimony is not material. As we have explained, “we have limited

material lies to those that occur as a part of the prosecution’s case.” O’Keefe,

128 F.3d at 894. “Thus, when the defense elicits the alleged perjury on cross-

examination, no material falsehood has occurred because the government has

not itself knowingly presented false testimony.” Id. In O’Keefe, the court

concluded that falsehoods were not material because “falsehoods, to the extent

that any were uttered, occurred as a result of the defense’s cross-examination,

not from testimony elicited by the prosecution.” Id. at 896. Here, the falsehood

also occurred during cross-examination. As a result, the testimony is not

material. Id.

Moreover, the jury knew Outley was serving an eight-year sentence at

the time he testified, and that he was testifying in part because he was

concerned he might face additional criminal charges. Therefore, the jury heard

information sufficient to evaluate Outley’s credibility in light of a potential

immunity deal with the government. See id. at 894. Based on these

considerations, Fields has not shown that the district court’s holding was

debatable.

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c. Whether DeLeon acted under government direction

The district court rejected Fields’s claim that DeLeon acted as a

government agent, in violation of Fields’s Sixth Amendment rights, finding “no

evidence demonstrating that the [g]overnment directed or otherwise

knowingly exploited Mr. DeLeon to act as a [g]overnment agent in eliciting

information from” Fields. We deny a COA on Fields’s claim because jurists of

reason would not disagree with the district court’s holding.

The Supreme Court has “held a criminal defendant may not have ‘used

against him at his trial evidence of his own incriminating words, which federal

agents had deliberately [and surreptitiously] elicited from him after he had

been indicted and in the absence of his counsel.’” Henderson v. Quarterman,

460 F.3d 654, 664 (5th Cir. 2006) (quoting Massiah v. United States, 377 U.S.

201, 206 (1964)) (alteration in original). A Massiah violation has three

elements: “(1) the Sixth Amendment right to counsel has attached; (2) the

individual seeking information from the defendant is a government agent

acting without the defendant’s counsel’s being present; and (3) that agent

‘deliberately elicit[s]’ incriminating statements from the defendant.” Id.

(alteration in original). “[T]he Sixth Amendment is not violated whenever—by

luck or happenstance—the State obtains incriminating statements from the

accused after the right to counsel has attached.” Maine v. Moulton, 474 U.S.

159, 176 (1985).

Fields has not shown that the district court’s holding is debatable.

DeLeon testified that he elicited as much information as he could from Fields

so that he could then pass that information to the government. He had

previously cooperated with the government and saw an opportunity to do so

again. Similarly, his letter to the government outlines steps that he took prior

to communicating with prosecutors. The record thus shows that DeLeon was

not acting at the direction of the government. There is no evidence

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demonstrating that the government “directed or otherwise knowingly

exploited” DeLeon to act as a government agent. Accordingly, jurists of reason

would not debate the district court’s rejection of Fields’s Massiah claim. See

United States v. Cutno, 431 F. App’x 275, 280 (5th Cir. 2011) (rejecting Massiah

claim where the “district court found no evidence to demonstrate that [witness]

was acting at the Government’s behest at the time that [defendant] made his

confession to [witness]”).

E. Actual Innocence

Fields argues that he has “set forth specific factual allegations

supporting his actual innocence of the murder of Suncerey Coleman.” He

contends that: forensic evidence could establish his innocence, and seeks

additional DNA testing; Scroggins and Outley “offered patently false testimony

at trial”; and the testimony of jailhouse informants was false and unreliable.

The district court rejected each of Fields’s contentions. Because we conclude

that reasonable jurists would not debate the district court’s holding, we deny

a COA.

1. Applicable Law

“A habeas petitioner, unlike the usual civil litigant in federal court, is

not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley,

520 U.S. 899, 904 (1997). Rather, Rule 6(a) of the Rules Governing § 2255

Cases permits discovery “for good cause.” Rule 6 of the Rules Governing 28

U.S.C. § 2255; see also Bracy, 520 U.S. at 904 (discussing Rule 6 of the Rules

Governing 28 U.S.C. § 2254). 18 A petitioner demonstrates “good cause” under

Rule 6(a) “where specific allegations before the court show reason to believe

18 Because Rule 6 of the Rules Governing § 2254 Cases is nearly identical to Rule 6 of

the Rules Governing § 2255 Cases, and both use the same “good cause” standard, courts have

looked to cases interpreting the former when applying the latter. See, e.g., Lafuente v. United

States, 617 F.3d 944, 947 (7th Cir. 2010); Pizzuti v. United States, 809 F. Supp. 2d 164, 175–

76 (S.D.N.Y. 2011).

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that the petitioner may, if the facts are fully developed, be able to demonstrate

that he is . . . entitled to relief.” Bracy, 520 U.S. at 908–09 (internal quotation

marks omitted). We have noted that Rule 6 of the Rules Governing § 2254

petitions “does not authorize fishing expeditions.” Ward v. Whitley, 21 F.3d

1355, 1367 (5th Cir. 1994). “[T]he district court’s decision regarding the

availability of discovery is . . . committed to the sound discretion of the district

court, and is reviewed under the abuse of discretion standard.” Clark v.

Johnson, 202 F.3d 760, 765–66 (5th Cir. 2000).

“‘Claims of actual innocence based on newly discovered evidence have

never been held to state a ground for federal habeas relief absent an

independent constitutional violation occurring in the underlying state criminal

proceeding.’” Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000) (quoting

Herrera v. Collins, 506 U.S. 390, 400 (1993)); see also Moore, 534 F.3d at 465

n.19. “Rather, a claim of actual innocence is a gateway through which a habeas

petitioner must pass to have his otherwise barred constitutional claim

considered on the merits.” Dowthitt, 230 F.3d at 741 (internal quotation marks

omitted). For a petitioner to obtain relief, “the evidence must establish

substantial doubt about his guilt to justify the conclusion that his execution

would be a miscarriage of justice unless his conviction was the product of a fair

trial.” Id. (internal quotation marks omitted).

2. Analysis

We conclude that reasonable jurists would not debate the district court’s

rejection of Fields’s actual innocence claim, and deny a COA. Initially, we note

that our caselaw does not recognize freestanding actual innocence claims.

Dowthitt, 230 F.3d at 741; Moore, 534 F.3d at 465. The district court rejected

Fields’s claim, finding it not cognizable. To the extent Fields makes a

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freestanding claim that he is entitled to habeas relief because he is actually

innocent, reasonable jurists would not debate the district court’s holding. 19

a. Forensic evidence

Fields contends that his § 2255 petition “established that no physical

evidence was presented at trial that connected him to the murder of Suncery

Coleman.” He offers several “examples of situations where the forensic

evidence he specifically requested in his DNA Motion could establish his

innocence by contradicting the unreliable testimony upon which he was

convicted.” 20 The district court rejected Fields’s argument, noting “there is no

requirement that [Fields] be linked to the murder through a positive DNA

19 We also note that in Fields’s brief, he only provides record cites to his habeas

petitions in the district court (which, in turn, rely on earlier petitions), and at no point directs

the court to evidence in the record or trial transcript that supports his claims. As a result,

he may have waived his arguments by failing to adequately brief them. See Fed. R. App. P.

28(a)(8)(A); United States v. Lopez, 426 F. App’x 260, 263 (5th Cir. 2011) (unpublished); see

also United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010).

20 Fields offers the following examples:

• Scroggins “testified that Fields had blood on his clothes and shoes the night of

Coleman’s death,” but the red Pontiac Grand Am that Fields drove that

evening “was forensically examined and tested, [and] produced no inculpatory

evidence linking Fields to the crime.”

• “The area where Coleman’s body was located was covered in huge thorns that

would have left cuts on anyone in that area, yet Fields, who was wearing shorts

that night, was uninjured.”

• “The blue Jaguar that the Government told the jury Edward Outley III and

Scroggins were driving the evening of the murder actually had been wrecked

and totaled in 1998.”

• “The gold Jaguar that Outley and Scroggins were actually driving the evening

of the murder was never forensically tested because Outley and Scroggins

conspired to hide the car by falsely telling investigators that they were in a

blue, rather than a gold vehicle.”

• “The detective who took buccal swabs and a blood sample from Fields the night

he was arrested falsely claimed to have found Fields’[s] blood on a .22 caliber

gun (which was not alleged to be the murder weapon), but Fields had no

injuries that would have left his blood on that weapon that night.”

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test,” and concluding that, “even assuming that the outcome of any DNA test

would be favorable to [Fields], he has not established that such outcome would

raise a reasonable probability of his actual innocence.”

Fields argues that the district court ignored his factual allegations and

erred in denying him relief. We conclude that reasonable jurists would not

debate the district court’s holding, because Fields’s allegations are speculative

and conclusory, they do not give “reason to believe that the petitioner may, if

the facts are fully developed, be able to demonstrate that he is . . . entitled to

relief,” Bracy, 520 U.S. at 908–09, and they therefore do not show “good cause”

as required under Rule 6(a).

Fields’s first “example,” his observation that the red Pontiac Grand Am

he drove the evening of Coleman’s murder “was forensically examined and

tested, [and] produced no inculpatory evidence linking Fields to the crime,”

does not support his argument that he is entitled to discovery. Fields cannot

show that his claim is debatable simply by pointing to a lack of physical

evidence on one issue; this is not the type of “specific allegation[]” that would

give us “reason to believe that the petitioner may, if the facts are fully

developed, be able to demonstrate that he is . . . entitled to relief.” Bracy, 520

U.S. at 908–09. This is particularly true, we note, when there was compelling

evidence of guilt presented at trial. Moreover, Fields does not acknowledge

that at trial, there was testimony that the Grand Am “looked like it had been

detailed [and] wiped down.” When the investigating team submitted the car

for examination, they did not expect anything to be found, “given how clean the

car” was. See also January 29, 2004 Trial Transcript (testimony of James

Blair) (stating that the car had “suspicious stains that could possibly be blood”).

Fields’s observation that the “[t]he area where Coleman’s body was

located was covered in huge thorns that would have left cuts on anyone in that

area, yet Fields, who was wearing shorts that night, was uninjured,” is

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similarly unhelpful. Again, Fields cannot establish that the district court’s

rejection of his discovery claim is debatable simply by noting the absence of a

particular piece of evidence he asserts should exist—here, cuts on Fields’s

legs—without any “specific allegations.” See Bracy, 520 U.S. at 908–09. Fields

provides no factual or record support for his conclusory statement that he was

uninjured. (Additionally, Fields offers no explanation for the logical response

that he could have cut his legs on thorns during the November 6th murder of

Coleman, and that those cuts could have healed by his November 24th capture,

more than two weeks later.)

Fields’s remaining examples amount to conclusory assertions, with no

specificity; he does not indicate how these assertions would establish his

entitlement to discovery. He also provides no support for his contention that

“[t]he detective who took buccal swabs” from him “falsely claimed to have found

Fields’[s] blood on a .22 caliber gun.” Accordingly, Fields’s “examples” fail to

cause reasonable jurists to debate the district court’s rejection of Fields’s claim.

b. DNA testing

The district court rejected Fields’s argument that he was entitled to DNA

testing, holding that Fields “fails to show how any new DNA or forensic

evidence testing would constitute direct evidence of his innocence.” The court

explained that, “[g]iven the compelling evidence of guilt presented at trial, the

Court does not conclude that any DNA testing would raise a reasonable

probability of [Fields]’s actual innocence.”

We conclude that reasonable jurists would not debate the district court’s

holding, because we are not persuaded by Fields’s arguments that additional

DNA testing should be performed on hairs found on Coleman’s clothing, a

fingernail clipping from Coleman, and Coleman’s body and clothing. Fields

fails to argue that he satisfies the requirements of 18 U.S.C. § 3600. “To secure

court ordered testing of DNA an applicant must satisfy each of the ten

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prerequisites enumerated in the statute.” United States v. Fasano, 577 F.3d

572, 575 (5th Cir. 2009). Accordingly, he fails to adequately brief the issue,

Scroggins, 599 F.3d at 446–47, or establish his entitlement to testing under

§ 3600.

Additionally, Fields does not acknowledge that Coleman’s clothing was

provided to evidence technicians and analyzed. See January 27, 2004 Trial

Transcript (testimony of Jill Urban), id. (testimony of Jacqueline Harris).

Similarly, Coleman’s fingernails from her left hand were collected and

analyzed for DNA. Id. (testimony of Katherine Long); January 28, 2004 Trial

Transcript (testimony of Jill Urban on recall). Moreover, Fields’s arguments

for why additional DNA testing, beyond that already conducted, should be

performed on Coleman’s body and clothing are conclusory and speculative.

Fields’s apparent suggestion that Coleman’s body should be exhumed for

further testing, without more, amounts to a fishing expedition. See Ward, 21

F.3d at 1367.

Fields suggests that Fasano, 577 F.3d 572, supports his “right to DNA

testing and a hearing” on his claim. In Fasano, the petitioner argued that he

met all ten requirements of 18 U.S.C. § 3600(a), two of which were contested

in the appeal. Id. at 575. The Fasano court concluded that the petitioner met

the two requirements at issue. Id. Here, however, Fields has not argued that

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he satisfies the requirements of § 3600(a). 21 Accordingly, Fasano does not help

his claim. 22

For these reasons, reasonable jurists would not debate the district court’s

holding that Fields is not entitled to additional DNA testing.

c. Testimony of Scroggins, Outley, and jailhouse informants

The district court rejected Fields’s argument that Scroggins and Outley

provided false testimony, and that jailhouse informants similarly provided

false and unreliable testimony. The court explained that Fields “provides no

corroborating evidence to support his allegations that various government

witnesses gave false testimony at trial,” and “failed to provide sufficient

specific allegations to demonstrate that any of his discovery requests will yield

evidence to support any of his grounds for relief.” We conclude that reasonable

jurists would not debate the district court’s holding, because Fields identifies

supposed inconsistencies in these witnesses’ testimony, but offers no evidence

suggesting that the witnesses lied or were otherwise unreliable. His

conclusory allegations do not give the court “reason to believe that the

petitioner may, if the facts are fully developed, be able to demonstrate that he

is . . . entitled to relief.” Bracy, 520 U.S. at 908–09.

21Additionally, Fields likely cannot satisfy the third requirement of § 3600(a), which

provides, in relevant part, that the “specific evidence to be tested . . . was not previously

subjected to DNA testing.” 18 U.S.C. § 3600(a)(3). Fields has not argued that his request

falls under one of the exceptions provided for in that subsection, for example, that although

the evidence was tested before, “the applicant is requesting DNA testing using a new method

or technology that is substantially more probative than the prior DNA testing.” Id.

§ 3600(a)(3)(B).

22 Fields’s two-sentence argument that the “continued refusal to provide Fields with

access to the requested DNA evidence also violates Fields’[s] right under the Eighth

Amendment to be free of cruel and unusual punishment,” is similarly unconvincing. Fields

cites no caselaw in support of his argument, and fails to adequately brief the issue. Scroggins,

599 F.3d at 446–47.

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For these reasons, we conclude that reasonable jurists would not debate

the district court’s holding that Fields failed to establish his actual innocence

or his entitlement to additional DNA testing or discovery on his claim, and we

deny a COA on this basis.

F. Allen Charge

The district court held that Fields could not relitigate his Allen charge

claim because we resolved it on direct appeal. We conclude that reasonable

jurists would not debate the district court’s holding, since we rejected Fields’s

claim on direct review, Fields, 483 F.3d at 340, and it is therefore barred from

collateral review, United States v. Rocha, 109 F.3d 225, 230 (5th Cir. 1997);

Kalish, 780 F.2d at 508. Accordingly, we deny a COA.

G. Security Measures

Fields argues that his constitutional rights were violated (1) when the

district court required him to wear a stun belt, (2) by his conditions of

confinement during trial, and (3) by the security measures during trial,

including the increased presence of United States Marshals and the Marshals’

role in escorting jurors to their cars during the penalty phase of the trial.

The district court held that Fields could not relitigate his stun belt claim

because we resolved it on direct appeal. Reasonable jurists would not debate

the district court’s holding, since we rejected Fields’s claim on direct review,

Fields, 483 F.3d at 356–57, and it is therefore barred from collateral review,

Rocha, 109 F.3d at 230, Kalish, 780 F.2d at 508. Fields’s contention that his

actual innocence claim allows him to overcome any procedural bar fails because

he does not establish his actual innocence.

The district court rejected Fields’s conditions of confinement arguments,

finding that Fields cited no authority to support his claim and “presented no

credible evidence to suggest that the nature of his detention adversely

impacted his ability to represent himself at trial.” Reasonable jurists would

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not debate the district court’s holding because Fields does not establish how

his factual allegations about his conditions of confinement during trial

implicate the Fifth or Sixth Amendments. He articulates no connection

between the single case he cites, a § 1983 case with language concerning the

Eighth Amendment, and his claim that his confinement violated his right to

self-representation. Fields’s conclusory allegations, without support, do not

establish that his claim is debatable. 23

Lastly, the district court denied relief of Fields’s claim about the court’s

use of increased security measures, concluding that the balancing of interests

“tipped in favor of additional security measures as it had been established that

[Fields] was an escape risk with a history of violent behavior.” Scrutiny of

security practices “must be balanced against the court’s obligation to protect

the court and its processes, and to attend to the safety and security of those in

the courtroom.” United States v. Nicholson, 846 F.2d 277, 279 (5th Cir. 1988).

This “balancing of competing interests is entrusted to the sound discretion of

the trial court.” Id. Prior to the trial, a United States Marshal reported to the

district court on security concerns. The Marshal noted that Fields had a

“violent criminal history,” a “history of escape and escape attempts since he’s

been back in custody” after the murder, and had shown “aggressive” and

“combative” behavior while in custody. As a result, the Marshal recommended

increased security measures, which the district court employed. Given these

facts, we conclude that reasonable jurists would not debate the district court’s

holding that additional security measures were appropriate. 24

23Because Fields fails to brief his argument that his conditions of confinement violated

the Eighth Amendment, we do not consider it. See Scroggins, 599 F.3d at 446–47.

24 Fields provides no support for his assertion that the district court had ex parte

contact “with at least one juror that suggested Fields was dangerous.” Accordingly, we hold

this argument waived. See Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d

848, 857 (5th Cir. 2014).

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For these reasons, we conclude that reasonable jurists would not debate

the district court’s holding that Fields failed to establish that the security

measures violated his constitutional rights, and deny a COA on this basis.

H. Cumulative Error

“Under the cumulative error doctrine, relief may be obtained only when

constitutional errors so fatally infect the trial that they violate the trial’s

fundamental fairness.” United States v. Stephens, 571 F.3d 401, 412 (5th Cir.

2009) (internal quotation marks omitted). Where the district court does not

commit an error, there can be no cumulative error. Id. The district court

rejected Fields’s claim because it determined that “[n]o error was committed

during” either phase of the trial. We conclude that reasonable jurists would

not debate the district court’s holding, because Fields fails to establish that the

district court committed any error; like the petitioner in Stephens, Fields’s

cumulative error argument “essentially summarizes the other issues raised on

appeal.” Id. at 411. Accordingly, we deny a COA.

I. Discovery and Evidentiary Hearing

Fields contends that he is entitled to an evidentiary hearing on his

claims. In a § 2255 proceeding, a hearing is required “[u]nless the motion and

the files and records of the case conclusively show that the prisoner is entitled

to no relief.” 28 U.S.C. § 2255(b). We review a district court’s refusal to grant

an evidentiary hearing on a § 2255 motion for abuse of discretion. United

States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006).

The district court held that Fields was not entitled to an evidentiary

hearing because the record and written submissions were sufficient to dispose

of each ground for relief. We conclude that reasonable jurists would not debate

the district court’s holding because the record and Fields’s motion are adequate

to dispose of each of Fields’s claims. See United States v. Plewniak, 947 F.2d

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1284, 1290 (5th Cir. 1991) (finding no error where district court refused to hold

hearing).

Fields also contends that he is entitled to discovery on several of his

claims. As we noted before, “[a] habeas petitioner, unlike the usual civil

litigant in federal court, is not entitled to discovery as a matter of ordinary

course.” Bracy, 520 U.S. at 904. A petitioner demonstrates “good cause” for

discovery under Rule 6(a) “where specific allegations before the court show

reason to believe that the petitioner may, if the facts are fully developed, be

able to demonstrate that he is . . . entitled to relief.” Bracy, 520 U.S. at 908–

09 (internal quotation marks omitted).

The district court held that Fields was not entitled to discovery because

he “failed to provide sufficient specific allegations to demonstrate that any of

his discovery requests will yield evidence to support any of his grounds for

relief.” Reasonable jurists would not debate the district court’s holding because

Fields has not provided specific allegations that lead us to believe he could

demonstrate his entitlement to relief if the facts are fully developed. Bracy,

520 U.S. at 908–09. Accordingly, we deny a COA on Fields’s claim concerning

his entitlement to discovery and evidentiary hearing.

IV. CONCLUSION

For the foregoing reasons, we DENY a COA as to all of Fields’s claims.

61