Clinton Young v. William Stephens, Director

Case: 14-70011 Document: 00513134902 Page: 1 Date Filed: 07/29/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-70011

United States Court of Appeals

Fifth Circuit

FILED

CLINTON LEE YOUNG, July 29, 2015

Lyle W. Cayce

Petitioner - Appellant Clerk

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent – Appellee

Appeals from the United States District Court

for the Western District of Texas

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge.

Petitioner-Appellant Clinton Lee Young (“Young”) was convicted of two

murders and sentenced to death. Young’s death sentence became final on April

3, 2006, when the Supreme Court denied his petition for a writ of certiorari.

Young’s habeas petitions, however, continue to be litigated. Now before this

court are Young’s requests for certificates of appealability (“COAs”) on his

“Brady/Napue,” ineffective assistance of counsel (“IAC”), and cumulative error

claims, as well as his appeal of the district court’s denial of his motion to stay

and to supplement the record. For the reasons that follow, Young’s motion for

COAs is DENIED. The district court’s ruling on his stay and motion to

supplement is AFFIRMED.

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I.

Young was convicted of capital murder on March 26, 2003, for killing

Samuel Petrey and Doyle Douglas in November 2001. He was sentenced to

death on April 14, 2003. A brief summary of his crimes follows. On the day of

Douglas’s murder, Young was with Mark Ray, David Page, Darnell McCoy, and

Doyle Douglas. The five men drove in Douglas’s car to buy marijuana at a

residence in Longview, Texas. When Douglas returned to his car, having failed

to get any marijuana, Young shot Douglas twice in the head at close range with

a .22 caliber pistol. Young, Ray, Page, and McCoy—allegedly under threat

from Young—then disposed of Douglas’s body in a creek, where Ray apparently

shot Douglas’s dead body in the head.

After the murder Young became concerned that someone might

recognize Douglas’s car, which Young was driving. To obtain a new vehicle,

Young and Page kidnapped Samuel Petrey in a grocery store parking lot and

took his truck. A day later, concerned that Petrey could identify them, Young

and Page drove Petrey to an isolated pumping station where Young shot and

killed him. Young and Page then parted ways and Page reported the crimes

to the police. Young was apprehended while driving Petrey’s truck. At the

time he was arrested he had a .22-caliber pistol in his possession which was

later connected to the shell casings found at both murder sites. See Young v.

State, No. AP-74643, 2005 WL 2374669, at *1–3 (Tex. Crim. App. Sep. 28, 2005)

(detailing the murders).

At trial Ray, McCoy, and Page testified against Young. The prosecution

stated that Ray and Page had not been offered any consideration for their

testimony, except that Ray received testimonial immunity. After trial, Ray

pleaded guilty to kidnapping, and received a fifteen-year sentence. Page

pleaded guilty to aggravated kidnapping and received a thirty-year sentence.

McCoy was not charged for any crimes related to Douglas’s murder.

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The Texas Court of Criminal Appeals (“TCCA”) affirmed Young’s

conviction on direct appeal. On April 22, 2005, Young filed his first state

habeas claim while his direct appeal was pending, alleging fourteen errors.

The state court held four days of hearings and thereafter recommended

denying relief. A few months later Young moved to add eight new claims to

his request for relief. The TCCA reviewed the record and concurred with the

trial court’s recommendation to deny relief; it also dismissed Young’s new

claims as a subsequent writ application and thus an abuse of the writ under

Texas law. Ex Parte Young, No. WR-65137-01, 2006 WL 3735395, at *1 (Tex.

Crim. App. Dec. 20, 2006). Young filed a petition for a writ of habeas corpus in

the District Court for the Western District of Texas on December 20, 2007. On

October 20, 2008, Young filed a motion to stay his federal case in order to

return to state court and advance new prosecutorial misconduct claims. Young

v. Stephens, No. CIV. MO-07-CA-002, 2014 WL 509376, at *1 (W.D. Tex. Feb.

10, 2014) vacated in part, 2014 WL 2628941 (W.D. Tex. June 13, 2014). The

motion to stay was granted on February 25, 2009. Id. at *16. Young then filed

his second subsequent petition for writ of habeas corpus with the state court.

Young asserted a variety of claims, including that the government

withheld information about Ray and Page’s plea agreements (which Young

allegedly discovered in 2008) and that his trial counsel was ineffective for

failing to prove that Ray and Page shot Douglas. The TCCA certified two

issues and remanded the case to the trial court for consideration. Ex Parte

Young, WR-65137-03, 2009 WL 1546625 (Tex. Crim. App. June 3, 2009). The

state trial court held five days of evidentiary hearings to consider whether the

prosecution withheld evidence related to plea negotiations with Ray and Page,

as well as whether the prosecution withheld impeachment evidence that could

have been used in cross-examination of A.P. Merillat. Ex Parte Young, No.

CR27181-C (385th Judicial Dist., Midland County, Texas, May 18, 2011). The

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state court denied Young’s petition for a writ on May 18, 2011, in a thorough

149-page opinion, holding “as a matter of fact that there was no express or

implied plea agreement between Mark Ray and the State” or “David Page and

the State.” Ex Parte Young, No. CR27181-C at *63–99, 123–140; Young, 2014

WL 509376, at *22. The TCCA affirmed. Ex parte Young, WR–65137–03 (Tex.

Crim. App. June 20, 2012).

On October 18, 2012, Young filed his second amended federal habeas

petition, which exceeded four-hundred pages. The district court denied this

petition on February 10, 2014, issuing a comprehensive two-hundred page

opinion. Young, 2014 WL 509376, at *199. The district court considered

Young’s Brady claim that “the prosecution failed to disclose to petitioner’s trial

counsel that it had offered prosecution witnesses Page and Ray ‘informal

promises of leniency and of favorable plea agreements’” and that “the

prosecution knowingly elicited false testimony from both Page and Ray

denying the existence of any promises or deals.” Id. at *26.

First, the district court noted that the state court had already heard

“extensive live testimony” and found that there “were no plea agreements or

promises of leniency made to either Page or Ray” and that “neither Page nor

Ray testified falsely during petitioner’s trial.” Id. The court considered the

testimony from Young’s third state habeas proceeding, where both Ray and his

mother testified that Ray was offered a five-year sentence by a Sheriff’s Deputy

but not a prosecutor, in exchange for testifying against Young. Id. at *17, 28.

The district court, however, did not find this testimony credible. The court

explained that the relevant prosecutors and investigators denied making any

plea offer. Id. More importantly, Ray’s trial counsel testified that, though

there were some preliminary discussions about a plea agreement, those

conversations did not result in an actual plea offer. Id.

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The district court also examined Page’s testimony at the third state

habeas proceeding. Page discussed a possible thirty-year plea deal with the

prosecution. Id. at *29. This deal was conditioned on passing a polygraph test,

which Page failed. Id. Consequently, Page’s trial attorney did not believe that

there was any plea agreement for Page. Id. Page’s trial counsel testified that

though Page hoped he would receive leniency for cooperating, he understood

that there was not an enforceable agreement. Id. Further, the prosecution

denied making any plea offers to Page. Id.

Based on the foregoing, the district court found that “the state habeas

court reasonably rejected as factually flawed petitioner’s contentions that

either Page or Ray had been offered a plea agreement or that promises of

leniency had been made to Ray or Page to induce their trial testimony against

petitioner.” Id. at *30. Hence,

petitioner failed to show the existence of any evidence at the time

of petitioner’s trial concerning secret plea agreements or promises

of leniency that could have been used to impeach Ray’s or Page’s

trial testimony. Petitioner’s first claim does not satisfy the first or

second prongs of Brady analysis, i.e., petitioner has failed to

establish that any potentially beneficial information regarding

undisclosed plea agreements or promises of leniency made to Ray

or Page actually existed at the time of petitioner’s trial. In

addition, because petitioner failed to establish that Ray or Page

furnished any factually inaccurate testimony at petitioner’s trial,

petitioner’s first claim also fails to satisfy the first and third prongs

of Giglio/Napue analysis, i.e., petitioner failed to show Ray or

Page gave any false testimony or that prosecutors knew Ray or

Page testified falsely.

Id.

On June 3, 2014, four months after the district court’s denial, Young filed

a motion to supplement the district court record with recently obtained

statements from James Kemp, Russell Stuteville, Amanda Williams, Pat

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Brook, and Page. 1 Young also filed motions to alter the judgment, for a COA,

and for a stay to return to state court. The district court denied these motions,

noting that “[o]ne of the recurrent problems in this cause has been petitioner’s

refusal to acknowledge the limited scope of this Court’s authority in this

federal habeas corpus proceeding.” Young, 2014 WL 2628941, at *3. As to

Brady, the court found that Young appeared to be attempting to relitigate the

district court’s ruling. Id. at *18. But, if the claim was actually supported by

new evidence, then the remedy was to “obtain permission for the filing of a

successive federal habeas corpus petition from the Fifth Circuit before

requesting a stay from this court.” Id. The district court denied the motion to

supplement on the grounds that defense counsel’s hearsay declarations had

“no evidentiary value.” Id. at *19.

II.

Young must obtain a COA before appealing the district court’s denial of

habeas relief. 28 U.S.C. § 2253(c). “Unless a circuit justice or judge issues a

[COA], an appeal may not be taken to the court of appeals . . . ” 28 U.S.C. §

2253(c)(1). The issuance of a COA requires a petitioner to make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-

El v. Cockrell, 537 U.S. 322, 336 (2003). This requires a petitioner to “show

that reasonable jurists could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Miller-

El, 537 U.S. at 336 (internal quotation marks and alteration omitted).

In making this determination, we examine the district court’s

application of the Antiterrorism and Effective Death Penalty Act of 1996

1 A description of the content of these statements can be found in this court’s denial of

Young’s motion to file a successive petition. In re Young, No. 14-51288, 2015 WL 3649765,

at *4–6 (5th Cir. June 8, 2015).

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(“AEDPA”) to the petitioner’s claims and “ask whether that resolution was

debatable amongst jurists of reason.” Id. This does not require a showing that

the appeal will succeed or a “full consideration of the factual or legal bases

adduced in support of the claims.” Id. at 336–37. Instead, the debatability of

AEDPA’s application to the underlying constitutional claims is a threshold

analysis, determined by “an overview of the claims in the habeas petition and

a general assessment of their merits.” Id. at 336.

Under AEDPA, a federal court may not issue a writ of habeas corpus for

a state conviction unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceedings.

28 U.S.C. § 2254(d). Analyzing § (d)(1), a state court’s decision is contrary to

clearly established federal law if: “(1) the state court ‘applies a rule that

contradicts the governing law’ announced in Supreme Court cases, or (2) the

state court decides a case differently than the Supreme Court did on a set of

materially indistinguishable facts.” Nelson v. Quarterman, 472 F.3d 287, 292

(5th Cir. 2006) (en banc) (quoting Mitchell v. Esparza, 540 U.S. 12, 15–16

(2003)). Similarly, § (d)(2) “requires that we accord the state trial court

substantial deference.” Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015). If

“‘[r]easonable minds reviewing the record might disagree’ about the finding in

question, ‘on habeas review that does not suffice to supersede the trial court’s

. . . determination.’” Id. (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).

We review the district court’s conclusions of law de novo and findings of fact

for clear error. Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998). AEDPA

specifically provides that the “determination of a factual issue made by a State court

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shall be presumed to be correct” unless the petitioner satisfies “the burden of

rebutting the presumption of correctness by clear and convincing evidence.” 28

U.S.C. § 2254(e)(1).

Lastly, we reiterate that “a COA determination is a ‘threshold inquiry’

that ‘does not require full consideration of the factual or legal bases adduced

in support of the claims.’” Jordan v. Fisher, 135 S. Ct. 2647, 2651 (2015)

(Sotomayor, J., dissenting from denial of certiorari) (quoting Miller-El, 537

U.S. at 337). ‘“[A] COA ruling is not the occasion for a ruling on the merit of

[a] petitioner’s claim.”’ Id. at 2652 (quoting Miller-El, 537 U.S. at 331). “It

requires only ‘an overview of the claims in the habeas petition and a general

assessment of their merits.”’ Id. (quoting Miller-El, 537 U.S. at 336).

III.

Young requests a COA for seven issues, which fall into three categories:

1) the prosecution’s alleged violation of Brady/Napue; 2) five instances of IAC;

and 3) cumulative error. All of these claims were considered by the district

court, which denied Young’s motions for COAs. We decline to grant Young a

COA on any of these issues because they are either procedurally barred,

meritless, or both.

I. Napue /Brady

Young’s brief contains a de novo reweighing of his Brady evidence. But

such a de novo review is not our role. Instead AEDPA requires us to consider

whether it is debatable that the state court decision was based on an

unreasonable determination of the facts or an unreasonable application of

clearly established federal law. Young’s challenge falls well short of the

threshold that would merit a COA.

The district court carefully considered the evidence presented in the

second successive state habeas proceeding, which involved five days of

testimony regarding Young’s Brady claims. Young, 2014 WL 509376, at *28–

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30. During this proceeding the two district attorneys, Rick Berry (Harrison

County DA) and Al Schorre (Midland County DA), as well as Young’s defense

counsel, Richard Hurlburt, testified that there were no plea agreements. Ray

and Page also testified that there were no pre-trial plea agreements with the

prosecutors. Ray’s wife testified too that there was no deal with the

prosecutors. Former sheriffs and investigators who took part in the case or

were around Ray testified that they never overheard discussions of a plea

agreement. The state court also noted that Ray was given immunity for his

testimony at trial and that this immunity was disclosed to Young’s defense

counsel and explained to the jury. The state court analyzed all of this

testimony and concluded that there was not a Brady violation because there

were no plea agreements with Page or Ray. The district court, after conducting

its own analysis of the evidence, agreed. We see nothing in Young’s petition

that calls this determination into question.

Young’s argument before this court is that Ray was, in fact, offered an

undisclosed plea deal. 2 He argues that the state court erred in not giving more

weight to Ray’s testimony regarding offered plea deals and that “Young has at

least debatably shown Ray received inducements.” But he ignores that the

state court expressly discounted Ray’s testimony in the second successive state

habeas proceeding as unbelievable in light of the contradictory evidence

presented by the government. Nothing in the record suggests that the state

court gave unreasonable weight to the evidence that contradicted Ray. 3 As a

2 Young claims that “[t]he Director does not dispute the suppression element.” But,

of course, the Director does because the Director contends that the state habeas court

correctly determined that there was never a bargain and thus, by extension, no suppression.

3 In fact, the record offers ample evidence to show that Ray was duplicitous when

testifying. Young, 2014 WL 509376, at *28 (stating that Ray’s testimony was directly

contradicted by prosecutors, investigators, and his own trial counsel and that Ray’s testimony

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result, it is undebatable that the state court’s factual determination that Ray

was not offered a plea agreement was not an unreasonable determination, so

the COA is denied.

Young’s request for a COA regarding plea deals allegedly offered to Page

suffers the same defect as his request for a COA regarding Ray. Both Page’s

attorney and the district attorneys have said consistently throughout these

proceedings that Page was offered a conditional plea, predicated on passing a

polygraph, and that when he failed that polygraph the plea negotiations ended.

Consequently, we find that it is not debatable that the district court properly

denied Young’s habeas petition with regard to Page’s alleged plea bargain.

Thus no COA is warranted.

Further, even if Young’s allegations of Brady violations were correct, we

agree with the district court’s conclusion that these nondisclosures were

immaterial in light of the evidence presented at trial.

[T]here is not even a remote possibility, much less a reasonable

probability [that] the outcome of either phase of petitioner’s capital

murder trial could have been any different had the prosecution

disclosed to petitioner’s counsel prior to trial either (1) [a DA] made

a comment shortly after Ray’s arrest that he ‘probably would make

[Ray] an offer he couldn’t refuse’ or (2) [a DA] discussed with Page’s

attorney . . . the possibility of Page receiving a thirty-year sentence

prior to the time Page flunked the polygraph examination.

Young, 2014 WL 2628941, at *8. Not only was the evidence against Young

overwhelming, but the biases and motivations of the eyewitnesses were also

evident at trial. Young’s alleged new evidence may create an issue of the

degree of that bias or motive to fabricate, but it does not create a new

itself was contradictory); see also Young, 2014 WL 2628941, at *8 (“To call Ray’s testimony

before the state habeas court anything other than ambiguous would be inaccurate.”)

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argument. Faced with the other evidence adduced at trial, it is undebatable

that no reasonable jurist could conclude that the outcome of the trial could

have been any different.

II. Ineffective Assistance of Counsel

Young alleges that his counsel was ineffective because he did not: (1) test

ballistics from the crime scene; (2) call Raynaldo Villa as a witness; (3) test

Douglas’s vehicle for bullet holes; (4) conduct a forensic examination of the

murder-site gloves; or (5) object to the admission of jail records. The district

court denied as procedurally barred Young’s claims related to: (1) not calling

Raynaldo Villa to testify, (2) not testing Douglas’s vehicle for bullet holes, (3)

not conducting a forensic examination of the murder-site gloves; and (4) not

objecting to jail records. We concur. We also find Young’s ballistics claim

meritless.

A. Failure to Call Raynaldo Villa

First, Young challenges the district court’s determination that his trial

counsel’s failure to call Raynaldo Villa was not IAC. Young claims that Villa

would have testified that he heard Page admit to shooting Petrey. There are

two problems with this argument. First, the record shows that Young’s trial

counsel did not learn about any alleged statements until after trial, thus

eliminating the possibility of IAC at trial. Young, 2014 WL 509376, at *131

(“There is no fact-specific allegation now before this Court, much less any

evidence, showing . . . petitioner’s defense team were otherwise aware of Villa’s

knowledge of Page’s allegedly inculpatory comment prior to the conclusion of

petitioner’s trial . . . [or that] through the exercise of due diligence [such

evidence] could have [been] discovered . . . prior to the conclusion of petitioner’s

trial.”). Thus there can be no IAC.

Second, this claim is unexhausted and procedurally barred. Id. at *128–

29. Young admits that he did not exhaust this claim but attempts to avoid

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procedural default by arguing that mentioning Villa’s declaration in his motion

for a new trial was sufficient to exhaust his claim. This argument is

unsupported by precedent. It is also contrary to the standard for exhaustion

in habeas cases, which requires that Young provide the highest court of the

state (the TCCA in this case) an opportunity to consider the alleged

constitutional error. Smith v. Quarterman, 515 F.3d 392, 402 (5th Cir. 2008).

Given that, at best, Young referenced Villa’s testimony in his motion for a new

trial and did not appeal this issue to the TCCA, no reasonable jurist could

debate that this claim was procedurally defaulted.

B. Failure to Test Douglas’s Vehicle or the Gloves from the

Petrey Murder Scene and Failure to Object to Jail Records

Next Young challenges his trial counsel’s failure to: (1) test Douglas’s

vehicle to determine the source of two .22-caliber shell casings found in the

front passenger side of Douglas’s car; (2) test the gloves found at the Petrey

murder scene for gunshot residue; and (3) object to the admission of his

Midland County Jail records at sentencing. The district court found each of

these claims procedurally barred. Young contends that the failure to raise

these claims should be excused, pursuant to Martinez v. Ryan, 132 S. Ct. 1309

(2012), because it resulted from the failure of his state habeas counsel to raise

them.

Young advanced these three claims after his first state habeas petition

was filed. They were dismissed as an abuse of the writ by the TCCA. Young,

2006 WL 3735395. Young restated a variation on the same claims in his second

subsequent state habeas complaint, and these claims were also dismissed.

Young, 2009 WL 1546625. Based on this procedural history the district court

did not err in holding that the TCCA’s multiple dismissals of these complaints,

based upon state writ-abuse principles, bar federal habeas review. Young,

2014 WL 509376, *124, 126, 143, 154; see Coleman v. Quarterman, 456 F.3d

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537, 542 (5th Cir. 2006) (holding that “Texas’s abuse of the writ doctrine is a

valid state procedural bar foreclosing federal habeas review”).

We decline to consider Young’s claim that Martinez applies and

overcomes this procedural default. Young’s Martinez argument is not properly

raised or briefed by his passing references to the case without explanation of

how the elements of Martinez are satisfied. See Martinez, 132 S. Ct. at 1318–

19 (holding that petitioner must establish that “the claim should have been

raised, [state habeas counsel] was ineffective under the standards of

[Strickland],” . . . and “the underlying ineffective-assistance-of-trial-counsel

claim is a substantial one.”). 4

C. Ballistics Evidence

Lastly, Young alleges that his trial counsel was ineffective because he

failed to introduce Tim Counce’s ballistics report and Richard Ernest’s forensic

report, which allegedly show that Ray possessed the gun that shot Douglas.

He also argues that his trial counsel explained the ballistics improperly during

closing argument. Young’s IAC argument concerning Counce’s ballistics report

and Ernest’s forensic report was rejected by the state court and the TCCA in

Young’s first state habeas claim. See Young, 2006 WL 3735395, at *1. Young

raised related IAC claims in March 2006; those claims were denied as a

subsequent state habeas application. See id. Young’s second subsequent state

habeas claim reiterated these previous arguments and also argued, for the first

time, that his counsel improperly explained the ballistics during closing: this

claim was dismissed. Young, 2009 WL 1546625, at *1.

4 Though we agree with the district court’s analysis concerning Young’s failure to

satisfy Martinez’s merit and prejudice prongs for each of these IAC claims, since this is a

threshold analysis and the claims are procedurally barred, there is no need to explain an

alternative holding.

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The district court dismissed Young’s new ballistics IAC claims as

procedurally barred because they were dismissed by the TCCA under the

Texas writ-abuse statute in both Young’s first successive and second successive

habeas proceedings. Young, 2014 WL 509376, at *143. 5 The district court also

found, in the alternative, that this IAC claim failed to satisfy either prong of

Strickland v. Washington, 466 U.S. 668 (1984). Id. at *144–47; Young, 2014

WL 2628941, at *9–13. We agree that no reasonable jurist could debate

whether Young’s counsel was ineffective for failing to present the ballistics

evidence or the forensics report or for improperly explaining ballistics during

closing. 6

The district court thoroughly and accurately summarized the testimony

adduced in Young’s trial. Young, 2014 WL 509376, at *2–12. All three

eyewitnesses testified consistently that Young shot Douglas in the head. Brook

testified that within hours of the murder Young confessed to him that he shot

Douglas in the head. Douglas’s body, which the police found with eyewitness

assistance, had head wounds. When Young was apprehended he had the gun

that shot the casings found in Douglas’s car and near Petrey’s body.

In contrast to this robust evidence, the ballistics evidence Young claims

created IAC is of little significance. The precise manner in which Douglas was

shot was not well-established in trial because the eyewitness testimony was

inconsistent concerning the details of where in the head Douglas was shot. The

witnesses were not, however, inconsistent when identifying Young as the

5 The district court subsequently amended its procedural holding because it

incorrectly stated that Young did not present Ernest’s report to the state habeas court.

Young, 2014 WL 2628941, at *10.

6The government has presented an alternative theory of procedural default based on

Cullen v. Pinholster, 131 S. Ct. 1388 (2011). While the court is free to affirm the district court

on any grounds, we need not address this argument because Young’s claim is clearly

meritless.

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shooter. There is simply little value to demonstrating inconsistencies between

the eyewitness descriptions of the fatal shots and the ballistics. Additionally,

Young was charged with both Douglas’s murder and being a party to Ray

shooting Douglas. Thus—even though the ballistics evidence does not

demonstrate that Ray shot Douglas—any evidence showing Ray killed Douglas

would also inculpate Young, who was a party to Ray’s conduct.

Ineffective assistance of counsel exists where counsel makes “errors so

serious that counsel is not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Not

presenting ballistics evidence that does not demonstrate innocence and is

largely irrelevant to the determination of guilt, does not arguably constitute

such an error. Considering the evidence against Young and the value of the

evidence he claims should have been admitted at trial, we affirm the district

court’s ruling that no reasonable jurist could disagree with the district court’s

holding that Young’s IAC claim did not satisfy Strickland.

III. Cumulative Error

The district court found Young’s cumulative error claim both

procedurally barred and meritless. Young, 2014 WL 509376, at *187–88. We

agree with both of the district court’s bases for denial of the petition. Because

the TCCA dismissed this cumulative error argument on state-law grounds (the

Texas writ-abuse statute), Young, 2009 WL 1546625, the claim is procedurally

barred. See Coleman, 456 F.3d at 542. Regardless, the district court was also

correct that Young has failed to demonstrate that there was any constitutional

error committed during his trial, which is required to satisfy the cumulative

error doctrine. Young, 2014 WL 509376, at *187–88 (citing Turner v.

Quarterman, 481 F.3d 292, 301 (5th Cir. 2007)).

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IV.

Young also challenges the district court’s denial of his second motion to

stay in order to advance a Brady claim and the claim that he is innocent of

capital murder. A COA is not required to review the district court’s ruling on

a non-merits issue such as a stay. See Dunn v. Cockrell, 302 F.3d 491, 492 (5th

Cir. 2002) (per curiam) (holding that a COA is not required to appeal denial of

a Rule 60 motion). Young’s contention is two-fold. First, in light of his new

Brady evidence, he argues that the district court abused its discretion by

denying his request to return to state court to pursue his Brady and innocence

claims. Second, he argues that the district court erred when it denied his

motion to supplement his petition with his counsel’s declarations regarding

alleged recantations by Kemp, Stuteville, Williams, Brook, and Page.

I. Motion to Stay

A “stay and abeyance should be available only in limited circumstances”

because “[s]taying a federal habeas petition frustrates AEDPA’s objective of

encouraging finality . . . . [and] streamlining federal habeas proceedings.”

Rhines v. Weber, 544 U.S. 269, 277 (2005). “[S]tay and abeyance is only

appropriate where [1] the district court determines there was good cause for

the petitioner’s failure to exhaust his claims in state court”; (2) the claim is not

“plainly meritless”; and (3) there is no indication that the petitioner is

“engag[ing] in abusive litigation tactics or intentional delay.” Id. at 277–78.

On appeal we review a district court’s denial of a stay and abeyance for abuse

of discretion. Id. at 279.

The district court focused primarily on the merits of Young’s argument,

element two, and found the argument wanting. Young, 2014 WL 2628941, at

*18.

At worst, petitioner’s motion for stay seeks the opportunity to re-

litigate the same Brady and Giglio–Napue claims the state habeas

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court and this Court concluded were without arguable merit by

employing a new list of witnesses who will give the same basic

testimony as the witnesses petitioner called during his most recent

state habeas corpus proceeding.

....

Petitioner has failed to support his motion for stay with sufficient

direct evidence showing his new Brady and Giglio-Napu[e]

claim[s] are any more likely to be meritorious than the ones

petitioner spent the last several years litigating in the state habeas

court and before this Court.

Id. at *18–19 (emphasis added).

The district court did not abuse its discretion in finding that Young’s

claim is plainly meritless. Assuming that the submitted declarations are

accurate reflections of the witnesses’ new testimony, in any subsequent state

court proceeding those witnesses would be impeached with a decade’s worth of

contradictory statements that they made concerning the absence of plea

agreements. They would also clash with the credible testimony of both the

trial and defense counsels, who testified that there were no plea agreements. 7

It is not reasonable to conclude that this collective evidence could lead to a

finding that a Brady violation occurred. Thus it was not an abuse of discretion

to deny Young’s motion for a stay. 8

7Young correctly notes that the district court said that Young had not made a “strong

showing” that he was likely to succeed on the merits, though Young need only show that his

claims are potentially meritorious. Young, 2014 WL 2628941, at *18 (citing Nken v. Holder,

556 U.S. 418, 434 (2009)). This takes the court’s language out of context as it also states that

Young’s argument, like his previous one, is “without arguable merit.” Id. The court also held

that Young’s new claim was not “any more likely to be meritorious than the ones petitioner

spent the last several years litigating.” Id. at *19.

8 It is likely that Young has not demonstrated good cause for the delay or that this is

not an instance of abusive litigation. We affirm on the grounds explained by the district

court, however, and do not reach these issues.

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The district court also noted that, if Young’s claims are truly new, then

what he is requesting is not a stay but rather permission to file a successive

petition. Young, 2014 WL 2628941, at *18 (“[I]f they truly be new claims, [it]

might justify an Order from the Fifth Circuit pursuant to Title 28 U.S.C. §

2244(b)(3).”). Indeed, just two months after filing this appeal, Young filed a

motion for authorization to file a successive petition. That motion described

the affidavits as “newly-discovered evidence [that] gives rise to new claims that

have not been presented in any prior habeas corpus application.” That motion

was denied. In re Young, No. 14-51288, 2015 WL 3649765, at *1 (5th Cir. June

8, 2015). We need not consider it again now.

Lastly, Young claims that a stay is warranted to advance a “potentially

meritorious new claim of actual innocence.” This claim is not properly before

this court. In the district court Young brought a procedurally barred actual

innocence claim. Young, 2014 WL 509376, at *188–90. He implied that a stay

should be granted in order to allow him to bring an actual innocence claim

based on his new evidence, but he did not actually make this argument. See

Young, 2014 WL 2628941, at *19. As a result, Young’s actual innocence claim

based on the alleged new evidence is not properly on appeal in this court.

II. Motion to Supplement

Young argues that the district court abused its discretion by denying his

motion to supplement his motion for a stay. The district court denied the

motion to supplement because the submitted declarations of counsel offered no

evidentiary value, recanting affidavits are suspicious, and, if supplementation

were allowed, it would only be for the actual statements of the recanting

witnesses. Young, 2014 WL 2628941, at *19. In response, Young cites Federal

Rule of Civil Procedure 15, which allows the court to permit supplementation

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of pleadings, 9 and Rhines, which he contends “requires only that the petitioner

allege a colorable claim” to support a claim for a stay.

The district court did not abuse its discretion by denying Young’s motion

to supplement. Young has not cited any law that required the district court to

grant his motion. Given the absence of such a requirement we find that the

district court articulated a reasonable justification for its denial. Young filed

a federal habeas petition with the district court on December 20, 2007. On

October 20, 2008, Young filed a motion to stay his case in order to return to

state court and advance new prosecutorial misconduct claims. The district

court granted that motion. Later the district court comprehensively reviewed

the evidence presented in state court and concluded that no plea bargains had

been offered. Based on this procedural history and the district court’s intimate

familiarity with the facts of the case, the district court concluded that Young’s

counsel’s declarations were of little or no value. This is not an unreasonable

interpretation and is not, therefore, an abuse of discretion.

V.

For these reasons we DENY all of Young’s motions for certificates of

appealability and AFFIRM the district court’s denial of Young’s motion for stay

and abatement and motion to supplement.

9 Rule 15 concerns the supplementation of pleadings, not the addition of evidence to

a habeas petition, and thus is inapposite. See, e.g., Burns v. Exxon Corp., 158 F.3d 336, 343

(5th Cir. 1998)

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