OPINION
This is аn appeal of the district court’s denial of Anson Avery Maynard’s habeas petition challenging on eleven separate grounds his 1981 conviction in North Carolina for first-degree murder. The district court granted the State’s summary judgment motion on all grounds after deciding not to hold an evidentiary hearing or permit discovery. Maynard challenges the procedures followed by the district court and assigns error to the court’s rejection on the merits of four of his claims. Finding no error, we affirm.
I
Maynard was convicted in North Carolina state court of killing Stephen Henry. Henry’s body was found in the Cape Fear River on June 15, 1981, with cinder blocks tied to his ankles and fatal gun shot wounds to his head. The body also showed some minor head wounds that were inflicted before death, and revealed that after Henry was killed he was stabbed in the stomach (apparently to make the body sink).
Henry was last seen alive in the company of Gary Bullard, an acquaintance of Henry and Maynard, on June 13. Bullard had spent the day with Henry helping him move a relative, and in the evening they left together to get some beer, telling Henry’s girlfriend that they would return shortly. Henry never returned because, as the State proved with Bullard’s testimony, Bullard was in league with petitioner to kill Henry, and in fact Bullard had lured Henry away so that Maynard could kill him. 1
*410 The evidence offered by the prosecution at trial, taken in the light most favorable to the State, proved the following: Maynard was determined to kill Henry because Henry was providing evidence to state prosecutors about Maynard’s leadership role in a burglary ring. 2 Maynard had come up with various plans to kill Henry, but these efforts failed for one reason or another, until the night of June 13, 1981. On that night, Bullard and Henry, after moving furniture, took a walk to get some beer. As they went through the woods, Maynard leaped out and attacked Henry. Maynard hit Henry in the head a number of times. After taping Henry’s hands behind his back, Bullard then left the scene to return to his house to get a car. Maynard then shot and killed Henry. Sometime later, Maynard went to Bullard’s house and drove off on a Moped. He returned driving a blue pick-up truck. Maynard then placed Henry’s body in the truck and ordered Bul-lard to get in the truck. Bullard and Maynard then drove to Dunn, North Carolina, and tried to bury Henry in a gravel pit, but that proved difficult. They then stopped at a building to get cinder blocks, and using them as an anchor, they dumped the body in the river. A day or so later a fisherman discovered Henry’s body.
Based on this evidence, Maynard was convicted by a Cumberland Cоunty jury in December 1981 and sentenced to death. Maynard appealed, and the North Carolina Supreme Court affirmed the conviction and the death sentence.
See State v. Maynard,
Maynard’s petition for a writ of habeas corpus in the federal district court made four claims relevant to this appeal. One, he contended that the state trial court erred in excluding jurors who might be against the death penalty because such exclusions were not adequately based on findings of fact. Second, he alleged that the post-conviction court’s determination of his claim under
Brady v. Maryland,
The district court granted the State’s motion for summary judgment on all counts. This timely appeal followed, and we hereby grant Maynard’s motion for a certificate of probable cause.
Maynard challenges the procedures followed by the district court in ruling on the State’s summary judgment motion, and assigns error to a number of the court’s rulings that Maynard’s conviction and sen *411 tence to death were not infected with constitutional error. We will consider his contentions in turn.
II
Maynard raises various objections to the procedure followed by the district court in granting the State summary judgment. Principally, he objects to the district court’s decision to grant summary judgment without first addrеssing his request for discovery, an evidentiary hearing, and a briefing schedule, and to the fact that the district court disposed of his objection on the jury voir dire before the trial court transcripts were filed.
A
In response to Maynard’s habeas petition, the State submitted its answer and a brief supporting its motion for summary judgment. In that document, the State noted that its answer was not complete because all of the relevant state court records, including the transcripts from the jury voir dire, were not yet available and that those documents would be provided later to the court.
Without waiting for additional documents, the court granted the state summary judgment, rejecting Maynard’s claim that jurors who had doubts about the death penalty were excused in violation of
Witherspoon v. Illinois,
A review of the voir dire transcript reveals that although both jurors ... were less than certain about their beliefs concerning the death penalty when initially questioned, they later unequivocally responded that they could not impose, in good conscience, a sentence of death.
J.A. at 260-61. The court then supported its conclusion by discussing in detail the responses of the veniremen made during the voir dire. Id. at 261-62.
Maynard asserts that the court’s decision must be in error because the transcripts were unavailable to the court, as the State had not yet filed them. Hence, he argues, the court’s decision must be reversed since the court could not have “review[ed] ... the voir dire transcript.”
The district court may have overstated its basis, but its assertion is essentially correct. Though it lacked the full transcript, the court had access to the relevant portions of the transcript, since they were included in Maynard’s habeas petition. See J.A. at 50-51, 52-55 (containing relevant voir dire transcripts). Those excerpts include references to the transcript pages, which is how the district court had cites to the transcript even though it was not filed. Moreover, Maynard’s habeas petition, read in light of Fed.R.Civ.P. 11, has been certified as true. See J.A. at 96. Consequently, the court could rely on the information included therein. The district court’s proceeding without the formally submitted transcript was not therefore in error.
B
Maynard’s second procedural claim is that the district court acted prematurely in ruling on the summary judgment motion without first considering his request for discovery, an evidentiary hearing, and briefing schedule. First the request for an evidentiary hearing and briefing schedule will be considered, and then the motion for discovery.
The district court followed the Rules Governing Section 2254 Cases in the United States District Courts (“Habeas Rules”) in acting on Maynard’s petition. Rule 8(a) provides that a judge shall determine, in his discretion, whether an eviden-tiary hearing is required. Hab.R. 8(a). If the court finds a hearing is not required, then “the judge shall make such disposition of the petition as justice shall require.” Id. Included in this broad grant of authority is the power to decide whether the legal and *412 factual issues raised in a habeas petition and response should be briefed. See generally C. Wright, A. Miller & E. Cooper, 17A Federal Practice and Procedure: Jurisdiction 2d § 4268.3, at 505-17 (1988). Consequently, the district court acted consistently with the rules in deciding on its own that no evidentiary hearing was required and that briefing was unnecessary. We find no abuse of discretion in its decision.
Maynard also asserts that the district court never ruled on his motion for discovery on his Brady claim before granting summary judgment. The Brady claim stems from the discovery during the post-conviction proceedings of information in the files of the Cumberland County sheriffs department indicating that the police were given information that a Lee Hunt was allegedly involved with a killing and dumping of the body in the Cape Fear River on the same weekend during which Maynard allegedly killed Henry. In his motion for discovery, Maynard sought to inspect the files of the sheriffs department and district attorney’s offices relating to the prosecution of Lee Hunt and Bullard.
Rule 6(a) of the Habeas Rules leaves to the discretion of the district court the granting of discovery requests. A court should grant discovery in its discretion where there is “good cause” why discovery should be allowed. In this case, the district court held that Maynard failed to make a showing of “good cause.” The court based its finding on the ground that Maynard had a post-conviction hearing on his
Brady
claim before the Cumberland County Superior Court, that the hearing was full and fair, and that the state court findings that the
Brady
material was fully explored by Maynard were supported by the record. On this basis the state court findings of facts were accepted by the district court, pursuant to 28 U.S.C. § 2254(d) and
Rusken v. Spain,
C
Maynard further complains that the court’s action in granting summary judgment denied him “a meaningful opportunity to present his case.” In particular, Maynard contends that because he did not file an answer to the State’s summary judgment motion that his position was compromised. We reject this contention for we cannot fault the district court for following the rules.
Rule 56, Fed.R.Civ.P., applies to habeas proceedings, and Maynard therefore was obligated under Rule 56(e) to respond to the State’s summary judgment motion by “showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). After Maynard failed to respond to the State’s summary judgment motion within the allowed time, or for several months thereafter, the district court decided that it could rule on the summary judgment motion consistent with Rule 56 and Hab.R. 8(a), which permit a district court, once the pleаdings are filed and it decides an evidentiary hearing is not required, to “make such disposition of the [habeas] petition as justice shall require.” Maynard contends that this process was somehow unfair to him because he was not certain what rules the court was following, that he was confused whether the court was following Habeas Rules or Federal Rules of Civil Procedure.
This contention is unconvincing. Maynard knew that the State’s motion for summary judgment was before the court. He knew that Rule 8 gives the court discretion to proceed on the petition as it sees fit. Maynard also knew that Rule 56 applies with equal force to habeas petitions, and that as a result a nonmoving party has the duty to respond to a summary judgment motion or risk the finding of no genuine *413 issue. This duty is all the greater where, as was true in this case, the state court had made findings that were entitled to a presumption of correctness under 28 U.S.C. § 2254(d). Consequently, we conclude that Maynard had ample notice and opportunity to meaningfully present his case by filing an answer to the summary judgment motion but failed to do so. We hold that this procedure gave Maynard sufficient opportunity to respond to the State’s motion, and accordingly we find no error in the proceedings of the court below.
Ill
Maynard contends that he should be resentenced because he was deprived of his sixth amendment right to confront witnesses at the sentencing phase when the State introduced evidence of prior criminal activity. The State sought to introduce the evidence because Maynard claimed to have “no significant history of criminal activity,” a mitigating factor under North Carolina law. On cross-examination Maynard did admit that he pled guilty in 1975 to misdemeanor larceny and misdemeanor assault with a deadly weapon, for which he received probationary sentences. However, he denied remembering the name of the victim and denied shooting the victim in the head. Also at the sentencing phase, Maynard put on his family and friends, who testified to the effect that he had no criminal record. As the North Carolina Supreme Court noted, “The thrust of defendant’s evidence was that he had never been in trouble with the law, had no criminal record ...; that he had never caused any problem, had never been involved in any illegal activity_”
Acting within its right to present rebuttal evidence,
see
N.C.G.S. § 15A-2000(a)(3) (Michie 1990);
State v. Silhan,
Maynard contends the state sentencing court erred when it permitted the grand jury indictment to be read to the sentencing jury, and further erred when it admitted the derivative testimony of the investigating officer. Petitioner concedes that the State can present rebuttal evidence, including evidence of unadjudicated offenses, but he complains that the statements from the grand jury indictment concerning these past offenses (and, derivatively, the testimony from the investigating officer) 4 are not permitted under the sixth amendment.
We take note that as a general rule it is not proper to read a bill of indictment to a jury. See N.C.G.S. § 15A-1221(b) (Michie *414 1990). That rule is aimed at protecting defendants from the distorting impact that a bill of indictment may have on the jury. In this case, however, those concerns are not immediately present since the indictments read to the jury concerned prior offenses. Petitioner focuses on the fact that the indictments were read to the jury — a practice that is generally not endorsed. See id. What petitioner misapprehends, however, is that an old indictment (not the immediately relevant one) was being read to the jury. And equally important, the old indictment being read was part of a final judgment and as such is a court record.
In North Carolina, as in most states, a valid, properly authenticated judgment against a defendant is admissible in a criminal trial. Id. § 15A-1340.4(e) (“The original or certified copy of the court record ... shall be prima facie evidence of the facts sets out therein.”); cf. Fed.R.Evid. 803(22) (certain documents, such as court records, containing hearsay are admissible because of “circumstantial guarantees of trustworthiness”). In this case, the “facts set out” in the court record include the original charge and the indictment. Maynard complains that presentation of these “facts” through the testimony of a court clerk amounts to a violation of the confrontation clause. This contention fails, however, because court records do not violate the rule against hearsay and thus do not implicate the confrontation clause. 5 Of course, a state cannot introduce just any court records; any proffers must meet the test of relevance. Here, the original charge and the indiсtment were pertinent to both the crime charged and the crime upon which judgment was entered. To give the jury a full picture of the defendant’s character, as was the State’s due (within constitutional limits), the State properly could introduce the original charge and the judgment entered so as to enable the sentencing jury to understand and appreciate the charge pleaded to as well as the “criminal activity” involved.
We note that this information was not offered by the State gratuitously, but instead came in as evidence to rebut Maynard’s naked claim that he had “no criminal history.” The indictment information and the officer’s testimony were relevant because they assisted the jury to understand *415 the true nature of the misdemeanor charges on which Maynard had been convicted. We hold that under these circumstances it was not constitutional error for the sentencing court to permit the court records to be read in their entirety to the jury-
IV
Maynard assigns error to the holding of the district court that the state trial court’s excuse for cause of two veniremen arguably opposed to the death penalty was supported by the record and not violative of the sixth, eighth, or fourteenth amendment. We agree that the jury was properly “death qualified” and affirm.
Under
Witherspoon v. Illinois,
A review of the voir dire in this case shows that the two excused veniremen stated, albeit after some pushing by counsel, that they would be unwilling to apply the death penalty if the facts and the law called for it but it wеnt against their conscience. After a long colloquy with the State’s prosecutor, in which venireman McMillan expressed the moral conflict he had between the law of the State of North Carolina and his own moral beliefs, the prosecutor asked:
Q. [A]re you telling me that if you find some conflict between the law and moral conscience or moral feelings about this matter, that you would make a decision based upon your own conscience as opposed to the law as [the judge] explains it to you?
A. Yes.
J.A. at 55. Similarly, venireman McKoy stated that he was personally opposed to the death penalty. When pressed by the prosecutor whether he would subjugate his personal views and enforce the law, he responded:
A. I would have to lean on my first belief.
* * * * * *
Q. And therefore, if, under the evidence and the law in the case, ... you felt that the death penalty was authorized and appropriate, however, you personally believed that it should not be imposed in this case or in any case for that matter, and would you then vote your personal conscience and vote against the death penalty?
A. I would, yes.
J.A. at 51.
Maynard argues that these responses did not make it “unmistakably clear” that veniremen McMillan and McKoy would “automatically” vote against the death penalty without regard to the circumstances that might emerge at trial. That high-level test, however, was rejected in
Witherspoon. See
V
Maynard contends that the district erred in dismissing his Brady claim without an evidentiary hearing. He further contends that the State wrongfully withheld material information. The Brady claim stems from Maynard’s allegation that various members of the Langston family told the police in June 1981 that a Lee Hunt had told them, or was overheard telling others, that he shot and killed a man and dumped the body in the river, weighed down by cinder blocks. Maynard argues that the state court did not make sufficient findings of fact on whether the alleged contacts by the Langston family ever took placе. He submits that there must be a remand for a hearing on this question. He further contends that at least one of the communications about Hunt was in his file and was not turned over to him, in violation of Brady. These contentions will be considered separately.
A
The State maintains that the post-conviction state court made proper findings, based on its credibility determination of the Langston family witnesses, that the contacts with the police by the Langston family were never made. In ruling on this issue, the state court held:
As to the allegations [concerning Lee Hunt], the Court concludes that the defendant has not shown by a preponderance of the evidence that this statement was in fact made and that such statements were communicated to the Cumberland County Sheriff’s Department. ...
J.A. at 407.
We find no constitutional error in the proceedings of the post-conviction state court. 6 Maynard’s motion fоr appropriate relief filed May 1986 made detailed allegations concerning statements about Lee Hunt revealing that on June 10 (three days before the killing of Henry) he said that he had killed someone and had dumped the body in the river. That would place Hunt’s alleged murder before the Henry murder. This assertion was not inadvertent: at the start of the postconviction hearing Maynard requested a missing person report to try to pin down when the victim disappeared, so as to support the June 10 date. However, once the hearing started the Langston family witnesses changed their story and testified that the critical date involving Hunt was June 13, not June 10.
After the hearing started Maynard seemed to change his theory regarding Hunt, or at least refined it somewhat, so that Hunt was forecasting what was going to happen. The State contends that because Maynard only cаme up with this theory after the hearing began, that the state court proceedings should not be called into question. We agree. The state court had before it petitioner’s motion for appropriate relief which alleged that members of the Langston family had contacted the police about actions Lee Hunt allegedly took on June 10. The court then heard testimony from the Langston family and the police, and made its credibility determinations. These determinations cannot be rendered defective by the claim put forward by Maynard after the hearing started that the detailed allegations concerning Hunt included in his motion for relief took place on June 13 and not on June 10. Our conclusion is grounded in procedural considerations and in logic.
*417 Procedurally, the State responded tо petitioner’s detailed motion for appropriate relief with an answer and presented evidence at the post-conviction hearing based on these detailed allegations. The State, and the court, are entitled to adequate notice about the substance of the controversy at the hearing. To enable Maynard to call into question the post-conviction court’s determinations based on belated changes in theory not offered until after the hearing started, would be to rob the state court of the ability to come finally to decision.
More fundamentally, though, we find Maynard’s claim inconsistent with logic. The post-conviction court heard testimony from the Langston family and from the Cumberland County sheriff’s department, and the court found, based on its credibility determinations, that Maynard had nоt shown by a preponderance of the evidence that the Langston family ever communicated their supposed knowledge of Lee Hunt to the police. We fail to see how this conclusion is altered by Maynard’s allegation that the Langston family witnesses were talking about June 13 or June 10. Essentially, it is the same witnesses who would appear before the post-conviction hearing to testify on the June 13 events. But the post-conviction state court already has determined the credibility of these witnesses. Under 28 U.S.C. § 2254, these findings are entitled to a presumption of correctness, and we find nothing in the record to rebut that presumption. Consequently, we find Maynard’s claim of error to be without merit.
B
Brady v. Maryland
requires a prosecutor to turn over “evidence favorable to an accused upon request” or risk violating the accused’s due process rights “where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of a proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.
At the post-conviction hearing Ernest Adams testified that he orally notified the sheriff’s department on June 11 that he had heard Hunt was involved in a killing and dumping of a body. He also stated that he visited the sheriff’s department on June 15 and met with a detective about a similar conversation he overheard that morning, the day the body was found, that Hunt had to leave town because of the body found in the river. The detective prepared an internal memorandum on this meeting and immediately placed it in Maynard’s (not Hunt’s) folder. 7 The State concedes this document was in their files but they contend Adams’s statement was not turned over in petitioner’s Brady request because it was not material to his guilt or innocence.
*418
Applying the materiality test from
Bag-ley,
we find that the statement of Ernest Adams was not material. At the outsеt we accept that the statement may have been favorable to petitioner. Though the statement itself would not have been admissible on hearsay grounds, it may have assisted Maynard in discovering other evidence or preparing for trial. But the critical question here is, to what ultimate effect? As we stated in
McDowell v. Dixon,
“not all evidence favorable to the defendant will create a reasonable doubt.”
Ultimately, therefore, the statement of Ernest Adams in the police files, and even the post-conviction testimony of Andrea Langston and Young, does not raise a reasonable probability that the jury’s verdict would have been different. That is because Hunt’s statements, as interpreted by Maynard, essentially point to Bullock as the perpetrator. Yet this theory was put to the jury and they rejected it. Consequently, giving petitioner the full force of the evidence withheld fails to undermine our confidence in the jury’s verdict against him. Accordingly, petitioner’s Brady claim was properly rejected.
VI
The final issue is whether the jury instructions created an unconstitutional risk, under the holding in
McKoy v. North Carolina,
In
Mills v. Maryland,
The verdict form at issue in Mills stated: Based upon the evidence we unanimously find that each of the following mitigating circumstances which is marked “yes” has been proven to exist by A PREPONDERANCE OF THE EVIDENCE and each mitigating circumstance marked “no” has not been proven by A PREPONDERANCE OF THE EVIDENCE.
The
Mills
Court found that “nothing the judge said dispelled the probable inference
*419
that ‘no’ is the opposite of ‘yes’ and that if there was a lack of unanimity as to any one mitigating circumstance then the jury should mark ‘no.’ ”
Id.
at 378,
In McKoy v. North Carolina, the Court again reviewed a jury instruction and verdict form to determine whether it imposed a unanimity requirement on the finding of mitigating circumstances. In that case, the verdict form put to the jury a number of questions. In relevant part, the verdict form, supported by the jury instructions, stated:
Issue One asked: “Do you unanimously find from the evidence, beyond a reasonable doubt, the existence of one or more of the following aggravating circumstances?”
[If the jury answered “yes,” they were instructed to proceed to Issue Two.]
Issue Two asked: “Do you unanimously find from the evidence the existence of one or more of the following mitigating circumstances?”
The McKoy Court found this verdict form invalid because it posed the same risk that “[t]he unanimity requirement thus [would] allow[] one holdout juror to prevent the others from giving effect to evidence that they believe calls” for a negative answer on the question of the death penalty. Id. at 1231.
We review the jury instructions and the verdict form used in this case with the decisions in Mills and McKoy as our guides.
The verdict form used at petitioner’s sentencing phase, as supported by the jury instructions, stated in relevant part:
Issue One: Do you unanimously find from the evidence, beyond a reasonable doubt, that one or more of the following aggravating circumstances existed at the time of the commission of this murder? Issue Two: Do you unanimously find beyond a reasonable doubt that the aggravating circumstance or circumstances found by you are sufficiently substantial to call for the imposition of the death penalty?
Issue Three: Do you find one or more mitigating circumstances?
Issue Four: Do you unanimously find beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances?
J.A. at 888-90 (emphasis supplied). We think a plain reading of the verdict form and the jury instructions indicates that the jury was not given the impression that its conclusions on mitigating circumstances must be unanimous. For one, the word “unanimously” is conspicuously absent from the verdict form question on mitigating circumstances. Equally important, the court’s instructions on mitigating circumstances conspicuously lack any mention that the jury must “agree unanimously.” See J.A. at 872-74. In contrast, the court’s instructions to the jury accomрanying Issue One and Issue Two constantly refer to “unanimously find” or “agree unanimously.” See J.A. at 865-71, 871-72. We find this careful instruction by the sentencing court sufficient to impose a unanimity requirement on aggravating circumstances and the other elements of the death sentence deliberations, but not to impose such a requirement as to the mitigating circumstances. Consequently, we hold that this verdict form with these jury instructions does not run afoul of Mills/McKoy.
We find support for this conclusion in the North Carolina Supreme Court’s recent opinion in
State v. McNeil,
Although the trial court never explicitly stated that the jury had to be unanimous concerning mitigating circumstances under Issue Two on the forms used, the trial court stated at least three times that the jury’s answers to all the issues must be unanimous.
The State argues that the lack of an express unanimity requirement in Issue Two on the forms given the jury stands in plain contrast to the express unanimity requirements of Issues One, Three and Four on those forms, and thus no reasonable juror would have interpreted the forms or the instructions to require unanimity as to mitigating circumstances. We disagree_ In this case
in which the jurors were instructed at least three times by the trial court that they must be unanimous in their decisions on all the issues they answered, wе are forced to conclude that, in their entirety, the jury instructions gave rise to a reasonable likelihood that some of the jurors were prevented from considering constitutionally relevant evidence.
395 S.E.2d at 109-10 (emphasis in original).
By contrast to the flawed instructions in McNeil, the jury instructions under review here carefully do not include any such general unanimity charge. Instead, these instructions, which we have to assume were followed, are conspicuously different from the instructions in Mills and McKoy, and lack the same overarching unanimity requirement imposed in McNeil. We are satisfied that the difference is significant enough so that these instructions did not preclude a sentencer from considering mitigating circumstances he or she deemed relevant.
VII
Having found no reversible error in the district court’s judgment, we affirm its dismissal of petitioner’s habeas petition.
AFFIRMED.
Notes
. Shortly after his arrest with petitioner for first-degree murder, Bullard agreed to testify for the State in exchange for complete immunity.
. Maynard disputes that claim and Bullard's version of the facts. Maynard contends that Bullard wanted to kill Henry because the victim had wronged Bullard in a drug transaction. Maynard further claims that he had denied repeated requests by Bullard to join in the killing of Henry. Finally, Maynard claims that he has an alibi which places him at a bar when the murder allegedly took place. This theory was supported by some evidence and was presented to the jury, which obviously rejected it.
. This testimony would not have been admissible in the State’s case-inchief, since his prior convictions were not felonies. See N.C.G.S. § 15A-2000(e)(3) (Michie 1990).
. Admissibility of the officer’s testimony is predicated on admissibility of the information contained in the indictment. For that reason, our analysis focuses on the latter and assumes that the officer's testimony turns on admissibility of the indictment.
. The State argues that
Williams v. New York,
Maynard also finds support from the Eleventh Circuit, which extended the sixth amendment right of cross-examination to the sentencing stage "at least where necessary to ensure the reliability of the witnesses’ testimony."
Proffitt v. Wainwright,
. Maynard complains that this finding is inadequate since it merely restates the State’s proposed order. That argument is unpersuasive. Though not preferred, trial courts can adopt proposed findings so long as the court, as the trial court here assertedly did, “meticulously compared the proposed findings of fact ... that were presented to the Court by counsel ... and has further compared them to the transcripts, evidence, law and believable facts herein." J.A. at 417. Petitioner gives us no reason to doubt this assertion.
. The statement in the police files, memorializing the detective’s conversation with Ernest Adams, reported:
Between 7 and 8 this morning ... I saw this white guy and this Indian talking. They said, "Did you hear about Lee Wayne leaving town, I heard he went to New York.” The Indian said, "No, he’s in Florida." ... [Earlier, Lee Wayne and someone else] started talking about Lee Wayne leaving town because they found that guy in the river. Then one of the guys said that the guy had cement blocks on his feet, and he wondered how he floated to the surface.
J.A. at 834.