United States v. Webster

United States Court of Appeals

Fifth Circuit

F I L E D

REVISED DECEMBER 8, 2004

December 7, 2004

In the Charles R. Fulbruge III

Clerk

United States Court of Appeals

for the Fifth Circuit

_______________

m 03-11194

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

BRUCE CARNEIL WEBSTER,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

m 4:00-CV-1646-Y

_________________________

Before SMITH, WIENER, and BARKSDALE, court, which granted a COA on two issues,

Circuit Judges. deemed unworthy of collateral review. Be-

cause Webster has failed to make a substantial

JERRY E. SMITH, Circuit Judge: showing of the denial of a constitutional right,

we deny his application.

Bruce Webster requests a certificate of ap-

pealability (“COA”) for issues the district I.

In 1996, a federal jury convicted Webster

of, and sentenced him to death for, three of- by the district court.3

fensesSSkidnaping resulting in death, conspir-

ing to kidnap, and using and carrying a firearm II.

during a crime of violenceSSfor his role in the A defendant may not appeal a final order in

shocking and exceedingly brutal kidnaping, a § 2255 proceeding unless a circuit justice or

rape, and murder of sixteen-year-old Lisa judge issues a COA. See 28 U.S.C. § 2253(c)-

Rene.1 We affirmed the conviction and sen- (1)(B). To obtain a COA, Webster must make

tence on direct appeal, see United States v. a “substantial showing of the denial of a con-

Webster, 162 F.3d 308 (5th Cir. 1998), cert. stitutional right.” 28 U.S.C. § 2253(c)(2).4

denied, 528 U.S. 829 (1999). He must demonstrate that “jurists of reason

could disagree with the district court’s reso-

In September 2000 Webster filed a motion lution of his constitutional claims or that jurists

to vacate his conviction and sentence pursuant could conclude the issues presented are ade-

to 28 U.S.C. § 2255, and an amended § 2255 quate to deserve encouragement to proceed

motion challenging his conviction and sentence further.” Miller-El, 537 U.S. at 327 (citing

on sixteen grounds in August 2002. The Slack, 529 U.S. at 484).

district court rejected Webster’s claims and

dismissed his petition. See Webster v. United In determining whether to grant a COA, we

States, No. 4:00-CV-1646-Y, 2003 WL are limited “to a threshold inquiry into the un-

23109787 (N.D. Tex. Sept. 30, 2003). derlying merit of [Webster’s] claims.” Id.

“This threshold inquiry does not require full

Webster subsequently filed (in the district consideration of the factual and legal bases ad-

court) an application for a COA on all grounds duced in support of the claims.” Id. at 336.

raised in his § 2255 motion. In January 2004, Instead, our determination is based on “an

the district court issued a COA limited to overview of the claims in the habeas petition

Webster’s claims that (1) his mental retarda- and a general assessment of their merits.” Id.

tion renders him ineligible for the death penalty In death penalty cases, “any doubts as to

and (2) the evidence was insufficient to war- whether a COA should issue must be resolved

rant the finding t hat he is not mentally re- in [petitioner’s] favor.” Hernandez v. John-

tarded.2 Webster thereafter filed the instant son, 213 F.3d 243, 248 (5th Cir. 2000).

application with this court expressly limited (as

is the government’s brief in opposition) to

requesting a COA on the issues not certified

1

The facts are set forth in detail in United

States v. Webster, 162 F.3d 308, 317-19 (5th Cir.

3

1998). See United States v. Kimler, 150 F.3d 429,

431 & n.1 (5th Cir. 1998) (stating that defendant

2

Although the claims on which the district court must expressly seek COA on additional issues not

granted a COA are not presently before us, we note certified by district court).

that Webster’s claim that the evidence at trial was

4

insufficient to warrant the district court’s finding See Miller-El v. Cockrell, 537 U.S. 322, 327

that he is not mentally retarded was raised and (2003); Slack v. McDaniel, 529 U.S. 473, 483

rejected on direct appeal. See id. at 352-53. (2000).

2

III. lenged this finding on direct appeal, claiming

A. that the statutory scheme precluded factfinding

Before the jury retired for deliberations at by the court absent the defendant’s motion,

the penalty phase, the district court excused and that the court acted without notice,

juror Albert Fox and elevated an alternate. thereby depriving him of due process. Re-

Webster alleges that the court committed con- viewing the statutory challenge for plain error

stitutional error in replacing the dismissed jur- as a result of Webster’s failure to object, and

or with an alternate. Because this claim was the due process claim de novo, we rejected

raised and rejected on direct appeal, see Web- both claims. See Webster, 162 F.3d at 351-52.

ster, 162 F.3d at 345-47, the district court

properly held that Webster was barred from Relying on Apprendi v. New Jersey, 530

raising it on collateral review.5 We therefore U.S. 466 (2000), and Ring v. Arizona, 536

deny a COA on this issue. U.S. 584 (2002), Webster sought habeas relief,

asserting that he has a due process right to

B. have the jury make the determination as to re-

After imposing a death sentence on the ver- tardation.7 The district court denied relief,

dict, the district court entered a factual finding concluding that Apprendi does not retroactive-

that Webster is not mentally retarded and is ly apply to initial habeas petitions under

therefore not immune from the death penalty § 2255 and that the absence of mental retarda-

under 18 U.S.C. § 3596(c).6 Webster chal tion is not an element of the sentence constitu-

tionally required to be found by the jury.

5

Webster seeks a COA on this claim.

See, e.g., United States v. Kalish, 780 F.2d

506, 508 (5th Cir. 1986) (“It is settled in this Cir-

Webster has not made the requisite showing

cuit that issues raised and disposed of in a previous

of the denial of a constitutional right in this

appeal from an original judgment of conviction are

not considered in § 2255 motions.”); United States instance. As an initial matter, the procedural

v. Rocha, 109 F.3d 225, 229 (5th Cir. 1997). rule announced in Apprendi is not retroactively

applicable to initial habeas petitions under §

6

The district court’s factual finding, entitled

Factual Finding Regarding Mental Retardation,

states, “Webster is not mentally retarded and . . . 6

(...continued)

he possesses the requisite mental capacity to un- person.

derstand the death penalty and why it will be im-

7

posed on him. As a result, the defendant Webster In Apprendi, 530 U.S. at 490, the Court held

is not exempt under 18 U.S.C. § 3596(c) from im- that “any fact [other than the fact of a prior convic-

plementation of the death penalty.” Section tion] that increases the penalty for a crime beyond

3596(c) provides: the prescribed statutory maximum must be submit-

ted to a jury and proved beyond a reasonable

A sentence of death shall not be carried out up- doubt.” In Ring, 536 U.S. at 589, the Court ex-

on a person who is mentally retarded. A sen- tended the rule announced in Apprendi to capital

tence of death shall not be carried out upon a cases: “Capital defendants, no less than noncapital

person who, as a result of mental disability, defendants, we conclude, are entitled to a jury de-

lacks the mental capacity to understand the termination of any fact on which the legislature

death penalty and why it was imposed on that conditions an increase in their maximum punish-

(continued...) ment.”

3

2255. See United States v. Brown, 305 F.3d (1) Counsel failed to investigate and pres-

304, 309 (5th Cir. 2002). Although this court ent additional evidence demonstrating men-

has yet to determine whether Ring applies tal retardation and the extreme abuse Web-

retroactively, because “the rule in Ring is ster suffered as a child;

essentially an application of Apprendi, logical

consistency suggests that the rule announced (2) Counsel failed to investigate and pres-

in Ring is not retroactively applicable.” In re ent (for purposes of mitigation and im-

Johnson, 334 F.3d 404, 405 n.1 (5th Cir. peachment) evidence of racial discrimina-

2003).8 tion in Webster’s Arkansas school district;

Even assuming arguendo that Ring applies (3) Counsel allowed a “breakdown in com-

retroactively, “neither Ring [nor] Apprendi . . . munication and a dispute over money with

render[s] the absence of mental retardation the the mitigation specialist” to affect the sen-

functional equivalent of an element of capital tencing phase of trial; and

murder which the state must prove beyond a

reasonable doubt.” Id. at 405 (emphasis add- (4) Counsel failed to object to the district

ed).9 Thus, because Apprendi does not apply court’s factual finding regarding mental

retroactively to Webster’s initial § 2255 mo- retardation.

tion, and Ring, even if retroactive, does not

render the absence of mental retardation an el- To make a substantial showing of the denial

ement of the sentence that is constitutionally of his Sixth Amendment right to reasonably

required to be determined by a jury, Webster effective assistance of counsel, Webster must

has failed to make the requisite showing. We satisfy Strickland v. Washington, 466 U.S. 668

deny a COA on this issue. (1984). Thus, he must demonstrate “that

counsel’s performance was deficient,” id. at

C. 687, and that “the deficient performance pre-

Webster contends that his trial counsel pro- judiced . . . [his] defense,” id.

vided ineffective assistance of counsel under

the Sixth Amendment. He alleges the follow- To establish deficient performance, a peti-

ing specific deficiencies: tioner “must show that counsel’s representa-

tion fell below an objective standard of reason-

ableness.” Id. at 687-88. Judicial scrutiny of

counsel’s performance must be “highly deferen-

8

See also Ring, 536 U.S. at 620-21 (O’Connor, tial,” id. at 689, and we must make every

J., dissenting) (opining that Ring’s impact would effort “to eliminate the distorting effects of

be reduced by Teague’s non-retroactivity princi- hindsight, to reconstruct the circumstances of

ple). See Teague v. Lane, 489 U.S. 288 (1989). counsel’s challenged conduct, and to evaluate

9

See also Ring, 536 U.S. at 609 (noting that

the conduct from counsel’s perspective at the

jury finding is constitutionally required for aggra- time,” id. There is a “strong presumption that

vating factors that operate as “the functional equiv- counsel’s conduct falls within the wide range

alent of an element of a greater offense”); Johnson, of reasonable professional assistance.” Id.

334 F.3d at 405 (“[T]he absence of mental retarda-

tion is not an element of the sentence any more than To establish prejudice, a petitioner “must

sanity is an element of an offense.”).

4

show that there is a reasonable probability expert on surrebuttal to critique the methodol-

that, but for counsel’s unprofessional errors, ogy used by one of the government’s experts

the result of the proceeding would have been in testing Webster’s cognitive abilities.

different. A reasonable probability is a proba-

bility sufficient to undermine confidence in the Moreover, counsel presented substantial

outcome.” Id. at 694. The district court’s evidence of the abuse Webster suffered as a

denial of relief is not debatable among jurists child, including testimony from his mother,

of reason, even on threshold review, so we two of his brothers, two of his sisters, an aunt,

deny a COA on these claims. a niece, and an ex-girlfriend. All of these wit-

nesses testified about the severe physical and

1. sexual abuse that Webster’s father inflicted on

Webster contends that his trial counsel his children and his wife (Webster’s mother).

were ineffective in failing to investigate and

present additional mitigating evidence demon-

strating mental retardation and the extreme 10

(...continued)

abuse he suffered as a child. The district court tified that he had examined Webster on two oc-

denied habeas relief, characterizing this inef- casions, first in 1995 and again immediately pre-

fective assistance claim as one of degreeSSi.e., ceding trial, and believed him to be mildly retarded

Webster does not allege that counsel utterly or in what he termed the educable range of the

failed to present evidence of mental retardation mentally retarded. Denis Keyes, a certified school

and child abuse but, instead, that counsel were psychologist, a Ph.D. in special education, and a

ineffective for failing to investigate and present professor of special education at the College of

Charleston, testified that, based on Webster’s

enough of such evidence. After engaging in an

scores on I.Q. and adaptive skills tests, he believed

exhaustive review of the trial record, the Webster to be mentally retarded. Mark Cun-

district court determined that defense counsel ningham, a clinical and forensic psychologist,

presented a significant amount of such evi- testified that he had examined Webster and had

dence; and, although more of the same or diagnosed him with several psychological disor-

similar evidence could have been furnished, ders, including mild variety mental retardation,

counsel were not constitutionally ineffective anti-social personality disorder, and a non-specific

for failing to present more of the same. personality disorder involving narcissistic and

dependant features.

Indeed, our review of the trial record con-

firms that Webster’s counsel were far from Robert Fulbright, a clinical neuropsychologist,

constitutionally ineffective in investigating and testified at length about the battery of tests he had

presenting evidence of his mental condition administered to Webster, measuring numerous

and the abuse he suffered as a child. During cognitive functions, including, inter alia, Web-

ster’s attention; concentration; flexibility of

the punishment phase, counsel presented

thought; problem-solving skills; language function-

lengthy and detailed testimony from four ing; academic abilities; selected sensory and motor

medical experts regarding Webster’s mental functioning; visual-facial skills; and verbal and

capacity10 and the testimony of a fifth medical visual memory. Fulbright stated that Webster’s

test results indicated significant deficits in cognitive

functioning consistent with a finding of mental

10

Raymond Finn, a clinical psychologist, tes- retardation (or someone who had suffered some

(continued...) type of organic brain injury).

5

These witnesses recounted graphic and violent portion of the Washington inquiry.12 We deny

stories of sexual abuse; weekly beatings with a COA on this ineffective assistance claim.

hoses, fan belts, and extension cords; and vari-

ous other forms of torture, including electric 2.

shock and burning. Even further, counsel pre- Webster faults his trial counsel for failing to

sented testimony from an officer of the juve- investigate and present evidence of racial

nile court in Arkansas that removed one of discrimination allegedly existing in the district

Webster’s siblings from the home because of where he attended school. Webster claims it is

abuse. vitally important for counsel to demonstrate

that the reason he was not enrolled in special

In light of this substantial body of evidence education courses was the district’s racially

and the pre-trial investigation its presentation discriminatory practice of not placing black

required, Webster’s generalized allegation that students in such courses even when necessary,

more evidence of mental retardation and child and not because he did not qualify. Had such

abuse should have been presented is arguably evidence been presented, Webster contends, it

frivolous. In any event, it is insufficient to would have effectively countered the govern-

demonstrate objectively deficient performance ment’s assertion that he is not mentally re-

by counsel.11 Because Webster has failed to tarded.

make the requisite showing of deficient per-

formance, we need not address the prejudice In denying habeas relief, the district court

concluded that Webster had failed to establish

either prong of the Washington standard on

this claim. Significantly, the court disagreed

11 with Webster about the salience of the evi-

See, e.g., Dowthitt v. Johnson, 230 F.3d 733,

743 (5th Cir. 2000) (stating that the deferential dence. First, the court observed that the gov-

review mandated by Washington requires courts to ernment disputed Webster’s claim of mental

be “particularly wary” of claims that counsel failed retardation primarily through the testimony of

to present “enough” evidence on a certain issue); its medical experts, cross-examination of

Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir.

1999) (“Did counsel investigate enough? Did

12

counsel present enough mitigating evidence? See, e.g., Dowthitt, 230 F.3d at 745 (assum-

Those questions are even less susceptible to judi- ing, arguendo, deficient performance and rejecting

cial second-guessing.”); Prejean v. State, 889 F.2d ineffective assistance claim on prejudice grounds)

1391, 1398–99 (5th Cir. 1990) (“Although it is (citing Buxton v. Lynaugh, 879 F.2d 140, 142 (5th

possible that [trial counsel] could have produced Cir. 1989) (“[Washington] allows the habeas court

more of the same type of [mental capacity] evi- to look at either prong first; if either one is found

dence . . . such detail is not required by [Washing- dispositive, it is not necessary to address the

ton].”); see also Wilson v. Ozmint, 352 F.3d 847, other.”)); Murray v. Magio, 736 F.2d 279, 282

861–62 (4th Cir. 2003) (finding counsel’s decision (5th Cir. 1984) (“[I]n addressing [an ineffective

not to present additional mitigating evidence rea- assistance] claim, we need not approach the inquiry

sonable in light of counsel’s belief that “their best in any particular order or even address both stages

mitigation evidence had been presented,” and “that of the inquiry if an insufficient showing is made as

the additional evidence would only have detracted to one. A claim may be disposed of for either

from the power of the mitigation evidence that they reasonable performance of counsel or lack of

had already presented”). prejudice, without addressing the other.”).

6

Webster’s medical experts, and the testimony different.14 We therefore deny a COA on this

of other witnesses familiar with Webster both ineffective assistance claim.

in and out of the prison system. Thus, al-

though certain government witnesses noted 3.

the fact that Webster was not in special educa- Webster contends that his trial counsel

tion courses, this point was merely incidental were ineffective in allowing a breakdown in

to the government’s case.13 communication and a dispute over fees with

the mitigation specialist to affect the investi-

Second, the district court noted that Web- gation and presentation of mitigating evidence.

ster’s brother Mark testified that most of his Although the factual basis underlying this

brothers were in special education classes, and claim differs from his other ineffective assis-

Tony Webster acknowledged that he was in tance claims, the substance of the claim re-

“resource” classes. Surmising that any evi- mains the same: But for this “breakdown,”

dence that the school district did not place additional mitigating evidence of mental retar-

black students in special education classes dation, child abuse, and racial discrimination in

when necessary would have been countered by school could have been discovered and pre-

such testimony, the court concluded that coun- sented.

sel could not be faulted for failing to pursue

this track. Webster’s vague and generalized allega-

tions of additional (unspecified) evidence of

Even assuming arguendo that counsel’s retardation and extreme child abuse notwith-

failure to investigate and present such evidence standing, defense counsel presented substantial

constitutes objectively deficient performance, quantities of mitigating evidence concerning

the district court’s conclusion that Webster retardation and child abuse.15 Webster cannot,

cannot demonstrate the requisite prejudice is

not debatable. Indeed, in rejecting Webster’s

claim on direct appeal that the evidence was 14

See Washington, 466 U.S. at 694 (explaining

insufficient to warrant the conclusion that he that the prejudice standard requires demonstration

was not mentally retarded, this court noted that, but for challenged performance, “result of the

that “[t]he government presented substantial proceeding would have been different”).

evidence to support the finding.” Webster,

15

162 F.3d at 353 (emphasis added). Conse- The jury’s findings on the statutory and non-

quently, the incremental impeachment value, if statutory mitigating factors proposed by defense

any, of such evidence does not raise a reason- counsel demonstrate the point: All twelve jurors

able possibility that, had the evidence been found that Webster “suffered from physical abuse,

presented, the outcome would have been emotional abuse, and/or parental neglect during his

upbringing”; six jurors found that he “grew up in

an atmosphere of violence and fear, which has

misshaped his perception as to the acceptability or

13

E.C. Turner, Linda Monk, and Pat Drewett, necessity of violent conduct”; four jurors found

a counselor and two teachers, respectively, from that he “is or may be mentally retarded” and “has

the junior high school Webster attended, testified low intellectual functioning”; four jurors found that

that, in their opinion, Webster was not mentally his level of participation in the commission of the

retarded, and noted that he was not in special ed- offense “was attributable, at least in part, to the

ucation classes. (continued...)

7

therefore, on threshold review, establish either § 3596(c).17 Thus, there was no legal basis on

deficient performance or prejudice for this which trial counsel could conclude (or even

claim. We therefore deny a COA on this suspect) that the court had committed error.18

ineffective assistance claim.

17

4. See Webster, 162 F.3d at 351 (“Webster

Webster claims ineffective assistance from alleges the factual finding was in contravention of

counsel’s failure to object to the district the [Federal Death Penalty Act’s] statutory

court’s factual finding, discussed above, that scheme, but the statute fails to address how to

ensure that the mandate of § 3596(c) is carried

he is not mentally retarded and thus is not ex-

out.”); id. (noting that “[b]ecause the statute fails

empt from the death penalty under § 3596(c).

to provide guidance, and no case has addressed this

The district court disagreed, concluding that issue, the law is not pellucid”); id. at 352 (“The

counsel’s failure to object to the finding cannot statutory scheme simply does not answer who

be deemed ineffective assistance when it was decides this issue . . . .”).

not evident, based on the law at the time, that

18

a potential error had occurred. We suppose that trial counsel could have ad-

vanced the statutory argument Webster made on

At the time of trial (which is what matters direct appealSSnamely, that § 3593(b)(3), which

when assessing counsel’s performance), 16 there provides that the court will act as a fact-finder “up-

was no law on who has the authority to de- on the motion of the defendant and with the ap-

cideSScourt or jurySSwhether a defendant is proval of the attorney for the government,” pre-

mentally retarded within the meaning of cludes any fact-finding by the court absent a mo-

tion by defendant. On direct appeal, however, we

rejected this argument, noting that this provision

refers “only to the determination of the sentence,

Webster, 162 F.3d at 351, and “in no way implies

15 that all court fact-finding must be on the defen-

(...continued)

influence of one or more of the other participants dant’s motion,” id. at 351-52.

involved in the commission of this crime”; all but

one of the jurors found that he “has the love and Trial counsel might also have advanced the oth-

support of his family”; four jurors found that other er argument made by Webster on direct appeal:

defendants, “equally culpable in the crime, will not that in the absence of a specific statutory scheme,

be punished by death”; and two jurors found that the only logical conclusion is that the jury must be

Webster “would likely adapt to prison life if he the fact-finder on the issue of mental retardation.

were sentenced to life imprisonment,” and “can be Here again, however, we rejected this self-styled

controlled in a prison setting.” See Webster, 162 “logical” argument, noting that it “suffers from

F.3d at 319-20 n.2. In fact, defense counsel pre- gaps in reasoning.” Id. Thus, even these argu-

sented expert testimony to the point that the district ments, which are based not on any clearly estab-

court decided to limit Webster’s surrebuttal on lished law, but rather on inferences from the pres-

cumulativeness grounds. See id. at 350-51 (re- ence and absence other statutory provisions, were

jecting due process challenge to this limitation). deemed meritless on direct appeal, and thus trial

counsel’s failure to raise them cannot form the

16

See, e.g., Lucas v. Johnson, 132 F.3d 1069, basis of a finding of ineffective assistance of coun-

1078 (5th Cir. 1998) (“The determination whether sel. See, e.g., Kimler, 167 F.3d at 893 (reasoning

the performance of counsel was deficient is based that attorney’s failure to raise meritless argument

upon the law as it existed at the time of trial.”). (continued...)

8

This dearth of authority persists even today; a basis for showing deficient performance.

no statutory amendment or judicial decision Reasonable jurists cannot disagree with the

has addressed whether the mental retardation district court’s conclusion that counsel were

finding envisioned by § 3596(c) is a question not constitutionally ineffective. We deny a

for the court or the jury. Moreover, even if COA on this ineffective assistance claim.

there were a subsequent legal development

holding that the jury is the fact-finder required D.

by § 3596(c), the admonition to reviewing Webster seeks a COA on his claim that the

courts to “eliminate the distorting effects of prosecution withheld impeachment evidence in

hindsight . . . and to evaluate the conduct from contravention of its due process obligation

counsel’s perspective at the time,” Washing- under Brady v. Maryland, 373 U.S. 83 (1963),

ton, 466 U.S. at 689, would render Webster’s and its progeny. The evidence allegedly with-

claim meritless.19 held is the same material Webster faults his

trial counsel for not investigating and present-

It follows, then, that counsel cannot be ing to the jury: alleged racial discrimination in

deemed constitutionally ineffective for failing the district where Webster attended school and

to anticipate a “subsequent development,” and specific evidence of the district’s discrimina-

Webster cannot rely on the failure to object as tory practice of failing to place black students

in special education classes when necessary.

As with his ineffective assistance claim, Web-

18

(...continued) ster maintains that disclosure of this evidence

cannot form basis of ineffective assistance claim). would have provided a basis for impeaching

19 government witnesses who testified that he

See, e.g., Lucas, 132 F.3d at 1078-79 (reject-

was not mentally retarded and who noted the

ing claim of deficient counsel performance “be-

cause counsel is not required to anticipate subse- fact that he was not enrolled in special educa-

quent developments in the law”); Organ v. Cock- tion classes.

rell, 297 F.3d 349, 360–61 (5th Cir. 2002) (hold-

ing that failure to object to supplemental mitigating The right to due process is violated where,

evidence instruction was not deficient performance on request, the government conceals evidence

before the issuance of Penry v. Johnson, 532 U.S. (exculpatory as well as impeachment) that is

782 (2001)); Clark v. Collins, 19 F.3d 959, 965- favorable to the defendant and material to

66 (5th Cir. 1994) (rejecting claim of deficient guilt or innocence, irrespective of the good

performance for failure to object to racially-moti- faith of the prosecution. See id. at 87–88;

vated peremptory strikes before issuance of Batson United States v. Bagley, 473 U.S. 667, 676

v. Kentucky, 476 U.S. 79 (1986)); Wiley v. Puck- (1985); United States v. Ellender, 947 F.2d

ett, 969 F.2d 86, 102 (5th Cir. 1992) (same); Gray 748, 756 (5th Cir. 1991). “[E]vidence is mate-

v. Lucas, 677 F.2d 1086, 1096 n.9 (5th Cir. 1982)

rial only if there is a reasonable probability

(holding that failure to object to prosecutor’s

interjection of future dangerousness through expert

that, had the evidence been disclosed to the

testimony did not constitute deficient performance defense, the result of the proceeding would

in advance of caselaw discrediting such testimony); have been different. A ‘reasonable probability’

see also United States v. Kleinbart, 27 F.3d 586, is a probability sufficient to undermine confi-

593 (D.C. Cir. 1994) (holding that failure to dence in the outcome.” Bagley, 473 U.S. at

appeal jury instruction did not constitute ineffective 682.

assistance “[g]iven the unclear state of the law”).

9

fails the threshold showing of materiality. “In

Relying on its antecedent conclusion that assessing the materiality of undisclosed im-

Webster could not demonstrate prejudice peachment evidence, ‘we must consider the

from counsel’s failure to discover and present nature of the impeachment evidence improp-

evidence of the school district’s discriminatory erly withheld and the additional evidence . . .

practices, the district court denied habeas relief independent of the disputed testimony.’”

on this claim. Jurists of reason cannot find Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir.

debatable or wrong the rejection of Webster’s 1994) (quoting United States v. Weintraub,

Brady claim. 871 F.2d 1257, 1262 (5th Cir. 1989)).

Even assuming, arguendo, that Webster can Although Webster maintains that such evi-

make the threshold showing that the govern- dence could have effectively countered the

ment suppressed (and was therefore in pos- government’s position that he is not mentally

session of) this information,20 Webster’s claim retarded, our analysis of his related ineffective

20

Webster attempts to make this showing by

vaguely referring to a desegregation lawsuit pro-

secuted by the Department of Justice against seven

20

Arkansas school districts, including his, in 1970. (...continued)

See generally United States v. Watson Chapel ernment are severable entities”); United States v.

Sch. Dist. No. 24, 446 F.2d 933 (8th Cir. 1971) Auten, 632 F.2d 478, 481 (5th Cir. 1980) (finding

(consolidated appeal regarding, inter alia, order prosecution was in possession of criminal history

requiring district to implement plan for unitary of witness even though no background check was

school district, and order finding members of conducted); United States v. Deutsch, 475 F.2d

school board guilty of civil contempt for failing to 55, 57-58 (5th Cir. 1975) (finding prosecutor was,

comply with implementation order). Webster for purposes of Brady, in possession of information

maintains that “by virtue of its previous prosecu- in Postal Service files), there are limits on the

tion of the school district, [the government] was in imputation of knowledge from one arm of the

possession of evidence which questioned the credi- government to prosecutors. “[T]he prosecution is

bility of their witnesses.” In other words, Webster deemed to have knowledge of information readily

seeks to impute to the federal prosecutors trying his available to it . . . .” Williams v. Whitley, 940

case knowledge of a desegregation lawsuit filed in F.2d 132, 133 (5th Cir. 1991) (emphasis added).

the 1970’s against his childhood school district,

from which he claims some impeachment evidence If this evidence is deemed “readily available” to

can be inferred. the prosecutors for purposes of Brady, we are

hard-pressed to conceive of any information that

Although “the prosecution” for Brady purposes would fall outside Brady’s constitutional mandate

does encompass more than the individual prosecu- of disclosure. After all, even knowledge of the

tor or group of prosecutors trying the case, and the school district’s history of segregation would not

prosecution may be deemed, in limited circum- lead a reasonable prosecutor where Webster claims

stances, to be in “constructive possession” of Bra- it leads, i.e., to question the credibility of school

dy material, see, e.g., Martinez v. Wainwright, 621 district employees testifying about Webster’s

F.2d 184, 186-87 (5th Cir. 1980) (finding no sug- mental capacity. Thus, Webster’s conclusional

gestion in Brady “that different ‘arms’ of the gov- allegation of knowledge is not sufficient to

(continued...) demonstrate suppression for purposes of Brady.

10

assistance claim obtains equally here.21 In the impeachment value, if any (given the conflict-

main, the prosecution presented substantial ev- ing testimony by Webster’s brothers), of such

idence countering Webster’s claim of mental evidence does not raise a reasonable probabil-

retardation, and the government’s effort did ity that, had the evidence been disclosed, the

not depend in any significant respect on Web- outcome would have been different.24

ster’s non-enrollment in special education

courses. In sum, even indulging (on this threshold

review) Webster’s highly attenuated and sus-

To the contrary, beyond cross-examining pect attempt to impute knowledge of this evi-

defense experts, the government produced two dence to the prosecution, the evidence alleg-

medical experts who testified that they did not edly withheld is not material. Because jurists

believe Webster was mentally retarded, and, of reason could not find this due process claim

primarily, that the methodology used by the debatable, we deny a COA on this issue.

defense experts to gauge his mental capacity

was critically flawed.22 Moreover, the govern- E.

ment presented numerous other witnesses Webster contends that § 3596(c) is uncon-

whose testimony contradicted Webster’s claim stitutionally vague and violates his right to due

of mental retardation.23 Thus, the incremental process because it fails to provide any guid-

ance on (1) whether the issue of mental retar-

dation is to be decided by the judge or jury; (2)

21

Accord Wilson, 28 F.3d at 437 n.6 (noting whether the decision is to be made pretrial or

that Bagley’s formulation of the materiality stan- at sentencing; (3) what is the burden of proof;

dard for Brady claims is derived from Washington, and (4) what is the relevant standard for a

466 U.S. at 698). finding of retardation. Although the district

22 court noted that Webster had failed to raise

Both government experts, George Parker and

Richard Coons, testified that, in their opinion, this claim on direct appeal,25 the court never

Webster had an incentive not to perform well on

the cognitive tests administered after he was

charged in this case, and pointed to prior cognitive 23

(...continued)

tests taken by Webster on which he scored higher. mitted names and addresses of people for his

Parker also testified at length regarding his position visitation list; and on one occasion complained be-

that the so-called “Vineland test” administered by cause the change he received from the prison

defense expert Dr. Keyes was an inappropriate and commissary was incorrect.

deceptive measure of Webster’s adaptive skills

24

given Webster’s lifestyle as a drug-dealer. See, e.g., Drew v. Collins, 964 F.2d 411,

419-20 (5th Cir. 1992) (holding that incremental

23

These witnesses included correctional officers impeachment value from minor inconsistencies be-

and fellow inmates who testified that, while incar- tween witness’ taped and written statements did not

cerated, Webster engaged in various activities satisfy Brady’s materiality standard).

potentially inconsistent with a finding of mental

25

retardation. For example, he wrote letters to fellow Indeed, as we noted, Webster argued on direct

inmates; received letters and newspapers; read appeal that the statute did provide sufficient guid-

aloud from newspapers; wrote request slips for ance: It entrusted the decision to the jury. As

various services; wrote written grievances; sub- support for this interpretation, Webster pointed to

(continued...) (continued...)

11

theless proceeded to consider and reject it on breathe new life into it on collateral review,

the merits. Webster relies on new statistical evidence

compiled by the Department of Justice.27

Webster may not, however, raise this issue Finding that those statistics are identical to

for the first time on collateral review without those held insufficient to state a prima facie

showing both “cause” for his procedural de- case of selective prosecution in United States

fault and “actual prejudice” resulting from the v. Jones, 287 F.3d 325, 332-35 (5th Cir.

error. See, e.g., United States v. Shaid, 937 2002), the district court rejected this claim.

F.2d 228, 232 (5th Cir. 1991) (en banc). He

has neither alleged nor shown cause and pre- We agree that the statistics are wholly in-

judice, so this claim cannot form the basis of a sufficient to meet the threshold requirement

substantial showing of the denial of a constitu- that Webster was singled out in the capital

tional right. We deny a COA on this issue. charging decision on the basis of his race, but

F. that others similarly situated were not. De-

Webster avers that the death sentence was spite citing to new statistical data, Webster has

applied in his case as a result of a “systematic done no more than repeat his claim of error re-

pattern of racial discrimination” on the part of jected on direct appeal. Because he has failed

the government in violation of the Fifth and to make the requisite showing of the denial of

Eighth Amendments. This claim was raised a constitutional right, we deny a COA on this

and rejected on direct appeal.26 Attempting to issue.

25

G.

(...continued) Webster contends that his due process

18 U.S.C. § 3593(b), which provides that the court

rights were violated by the presentation of

will act as a fact-finder “upon the motion of the de-

“perjured and damaging testimony” from co-

fendant and with the approval of the attorney for

the government.” He asserted that this provision defendants Steven Beckley and Marvin Hollo-

precluded any fact-finding by the court absent the way. He alleges that two post-trial events pro-

defendant’s motion. See Webster, 162 F.3d at vide a basis for this claim: first, that Beckley

351-52. told a correctional officer and an inmate that

he had lied at Webster’s trial in an effort to im-

26

Webster argued on direct appeal that the dis- prove his standing with the government; and

trict court erred by denying his motion (which was second, that Orlando Hall, another co-defen-

based on alleged racial discrimination in the charg- dant, received a letter from Holloway stating

ing decision) to dismiss the government’s notice to that he owed Webster an apologySSa state-

seek the death penalty. In rejecting this claim, we ment Webster cites as evidence that Holloway

concluded that Webster had failed to make the lied at trial.

requisite showing that he was singled out for

selective prosecution; that his statistical evidence

was insufficient to rebut the good-faith presump-

tion on the part of the prosecution; and that the 26

(...continued)

objective circumstances of the crime and the death penalty. See id. at 333-35.

sufficiency and availability of evidence to the prove

27

the elements required constituted proper and legiti- See DEP’T OF JUSTICE: THE FEDERAL DEATH

mate non-discriminatory grounds for seeking the PENALTY SYSTEM: A STATISTICAL SURVEY

(continued...) 1988–2000 (2000).

12

The district court determined that, even if allegations of perjury are accurate, his underly-

Webster’s allegations of perjury were accepted ing due process claim is not debatable, because

as true, his claim is meritless given his failure he has failed even to allege that the prosecu-

even to allege that the government knew that tion knew that any statements made by either

any of the testimony given by Beckley or witness were false.29

Holloway was false.28 Jurists of reason could

not find debatable or wrong the district court’s Because Webster has failed to identify any

rejection of this claim. statement that is false, and has not even al-

leged the government knowledge of falsity on

“[I]t is established that a conviction ob- which a due process claim is based, he has not

tained through the use of false evidence, made a substantial showing of the denial of his

known to be such by representatives of the constitutional right to due process. We deny

State, must fall under the Fourteenth Amend- a COA on this issue.

ment . . . . The same result obtains when the

State, although not soliciting false evidence, H.

allows it to go uncorrected when it appears.” Webster seeks a COA on his claim that his

United States v. O’Keefe, 128 F.3d 885, 893 (alleged) mental retardation renders his execu-

(5th Cir. 1997) (quoting Napue v. Illinois, 360 tion contrary to binding international law. The

U.S. 264, 269 (1959) (emphasis added)). To district court rejected this claim on the merits,

establish a due process violation based on the concluding that international law affords

government’s use of false or misleading testi- Webster no greater relief than does domestic

mony, Webster must show that (1) the testi- constitutional relief under the Eighth Amend-

mony in question was actually false; (2) the ment as interpreted in Atkins v. Virginia, 536

testimony was material; and (3) the prosecu- U.S. 304 (2002). Jurists of reason could not

tion had knowledge that the testimony was disagree or find wrong the district court’s

false. Id. at 893 (citing United States v. Black- conclusion in that regard.

burn, 9 F.3d 353, 357 (5th Cir. 1993)).

Reliance on that conclusion is not neces-

As a threshold matter, Webster has failed to sary, however. Because Webster did not raise

identify even a single specific statement made this claim on direct appeal and has failed to

by either witness that is false; instead, he offers demonstrate cause and prejudice for this de-

only conclusional statements about the ulti- fault, in either his § 2255 motion or his COA

mate falsity of Beckley’s and Holloway’s application in the district court or with this

testimony. Moreover, even if Webster’s court, he may not raise it for the first time on

collateral review. See, e.g., Shaid, 937 F.2d at

28

The district court also questioned whether

29

Webster had presented any evidence demonstrating See, e.g., East v. Scott, 55 F.3d 996, 1005

that either witness lied at trial. In fact, the court (5th Cir. 1995) (holding that allegations failed to

observed that both Beckley’s alleged statement and establish prima facie case of Napue violation

Holloway’s letter could plausibly be read as indica- where defendant “fails to allege any facts suggest-

tions that both men were apologetic about testify- ing prosecution knew about” contested subject);

ing against Webster to improve their own liability see also O’Keefe, 128 F.3d at 893; Blackburn,

situations and not as admissions of perjury. 9 F.3d at 357.

13

232. We deny a COA on this issue. merely claims error in the denial of discovery

and lists the thirteen grounds for relief on

I. which he seeks to engage in discovery. His

Webster seeks a COA regarding the district application thus reflects a desire to use the ha-

court’s denial of his request for discovery.30 beas corpus discovery mechanism to explore

He claims that the court abused its discretion his case “in search of its existence.” Id. (quot-

in denying discovery, thereby violating his due ing Aubet v. Maine, 431 F.2d 688, 689 (1st

process rights. Cir. 1970)). This court does not, however,

“sanction fishing expeditions based on peti-

A habeas petitioner may “invoke the pro- tioner’s conclusory allegations.” Rector, 120

cess of discovery available under the Federal F.3d at 562 (citing Perillo, 79 F.3d at 444).

Rules of Civil Procedure if, and to the extent Because Webster has failed to identify, with

that, the judge in the exercise of his discretion specific allegations, any dispositive factual dis-

and for good cause shown grants leave to do putes, we deny a COA on this issue.

so, but not otherwise.” Rector v. Johnson,

120 F.3d 551, 562 (5th Cir. 1997) (citing The application to extend the COA issued

Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. by the district court is in all respects DENIED.

1996)). “A federal habeas court must allow

discovery and an evidentiary hearing only

where a factual dispute, if resolved in the

petitioner’s favor, would entitle him to relief .

. . .” Ward v. Whitley, 21 F.3d 1355, 1367

(5th Cir. 1994). Conclusional allegations are

insufficient to warrant discovery; the petitioner

must set forth specific allegations of fact. Id.

(citing Willie v. Maggio, 737 F.2d 1372 (5th

Cir. 1984)).

Webster’s application does not allege a sin-

gle factual dispute, which, if resolved in his fa-

vor, would entitle him to relief.31 Instead, he

30

During the pendency of his initial § 2255 mo-

tion, Webster requested and was granted permis-

sion to file a motion for discovery, which the court

denied.

31

Compare Perillo, 79 F.3d at 444-45 (finding

31

error in denial of discovery where habeas petitioner (...continued)

had stated a specific factual disputeSSwhether her entitle her to relief), with Rector, 120 F.3d at 562

attorney represented another person involved in the (affirming denial of discovery request where ha-

charged crime, and therefore had a conflict of beas petitioner had “failed to make at least a prima

interestSSwhich, if resolved in her favor, would facie showing of what specifically he intends to

(continued...) prove”).

14