*3 County, Texas, where, Houston Harris BARKSDALE, Before GARZA and tied, they with their hands were murdered DENNIS, Judges. Circuit Miller, by Woods, handgun, with a a shotgun. with BARKSDALE, RHESA HAWKINS Judge: Circuit 1982, In October Miller was convicted murder, death, capital for and sentenced to 1982, In Anthony Donald Miller was for murdering Mozingo Michael while convicted in Texas capital state court of the course of committing, attempting 2004, murder and sentenced to death. commit, aggravated to robbery. Segura federal habeas relief was conditionally Miller; testified against Woods did not granted sentencing, the district court (Before testify. trial, Segura concluding that pro- the State violated due pleaded guilty aggravated robbery; cess withholding in violation Woods, murder, receiving two life sen- 83, of Brady Maryland, v. 373 U.S. 83 Post-trial, tences. was sentenced (1963) 1194, (due S.Ct. 10 L.Ed.2d 215 years prison.) to 25 process prosecution violation for sup- evidence) press favorable material (Brady- The Texas Appeals Court of Criminal claim). State, It denied relief for the other affirmed. Miller v. S.W.2d claims, (en including banc). Brady-claim the same (Tex.Crim.App.1987) as The Su- on that claim for his sen- granting of certiorari. relief a writ denied
preme Court Texas, 1061, 108 S.Ct. tence. 486 U.S. Miller v. (1988).
2835,100
L.Ed.2d
petition
§ 2254 habeas
Miller’s 28 U.S.C.
relief, pre-
habeas
requested state
Antiterrorism and Effec
subject to the
is
claims,
pend-
but not
senting numerous
(AEDPA).
Penalty Act of 1996
tive Death
court
The state district
ing Brady-claim.
Johnson,
782,
See, e.g., Penny v.
532 U.S.
of fact and conclusions
findings
entered
(2001).
ment held on the was State’s (5th Cir.1999). Anderson, 635, F.3d argu- the conditional habeas relief. At ment, supplemental briefing we ordered on A. claim. the State’s failure to exhaust usually court Claims not raised state
II.
be-
cannot be considered
federal-habeas
they are not exhausted. See 28
maintains the district court
cause
2254(b)(1)(A).
(1)
§
A
Brady-
federal court
by:
considering
erred
Miller’s
U.S.C.
claim,
claim,
may
not exhausted in
consider an otherwise defaulted
because
(2)
court;
alternative,
however,
showing
on a
of either cause
state
prejudice
default
or actual inno-
B.
States,
Bousley
cence.
v. United
523 U.S.
“[T]he Constitution is not violat
614, 622-23,
1604,
118 S.Ct.
140 L.Ed.2d
every
ed
government
time the
fails or
(1998);
Lane,
288,
Teague
v.
489 U.S.
chooses not to disclose evidence that might
298,
1060,
109 S.Ct.
As
under
we
(5th Cir.),
denied,
1067,
212
(but
cert.
528 U.S.
deny
can
grant)
not
Miller’s non-
630,
(1999);
120 S.Ct.
handgun
the murders. Hol-
SPECIAL ISSUE NO. 2
singer’s
suggests
affidavit
took full
Woods
Whether there is a probability that the
for
responsibility
and left
murders
defendant would commit criminal acts of
with
“it
Holsinger
impression
was an
violence that would constitute a continu-
everyday thing with
district
him”. The
ing
society.
threat
Woods,
court found the affidavits indicated
37.071(b) (Ver-
art.
Proc.,
Tex. Code Crim.
killed both
and that
victims
1981)
added).
(Miller’s
non
(emphasis
tri-
armed. Id. at 23.
al was held
special
before
third
for
issue
mitigation was added to the Texas death
Referring primarily to
and Mor-
penalty
statute
1991. Tex. Code
statements,
Brady’s
ris’
and applying
Crim.
37.071,
2(e)(1),
§
art.
added
test,
Proc.,
three-part
above-described
the dis-
(S.B.
1991 Tex.
Law
Sess.
Serv. Ch. 838
(1)
trict court ruled:
withheld
State
880) (Vernon).) Therefore, for
two
those
(2)
evidence;
Miller;
was favorable
answers, at issue is whether
“there is
(3)
material,
it was
but
sen-
for
[sup-
had the
tencing.
Opn.
USDC
ruling
pressed] evidence been disclosed to [Mil-
procedural-bar
earlier
el-
prejudice
ler],
the result of the [penalty phase]
ement, the district
although
court held:
would
Bagley,
have been different”.
“complicity
killings
in the
is not
U.S. at
Regarding that against extensive corroborative that Miller’s state habeas knowledges only provided incre- statement of the two- received one side counsel not ma- impeachment mental value is but, tape; it maintains Mil- interview sided Edmond v. Brady purposes. terial for See counsel, Stover, Rick received ler’s trial (5th Cir.1993). Collins, 290, 294 In 8 F.3d tape-recorded and transcribed state- regard, points the State to McCall’s this entirety and cross-examined ment in their acknowledgment previ- at trial that he had support statement. McCall about the ously untruthful. been contention, points to Sto- of this derby”, term “destruction ver’s use of the that McCall’s 20 Miller counters tape, in on the second side of the found partially sup- was at least McCall, demonstrating cross-examining and was favorable and material. pressed to the entire must have listened Stover Miller concedes Stover’s cross-examination evidentiary court tape. At the district of McCall at trial and Stover’s (approximately years hearing evidentiary hearing at the district court Olsen, trial), prosecutor, tes- after the part tape. he of the Mil- indicate received tape proba- gave tified he Stover however, contends, ler the district gave transcript. Although him the bly reasonably suppressed, found it was court evidentiary hearing testified Stover on-the-record, pre-trial given the State’s tran- receiving not remember that he did concerning obligation its position incorrect tape, he admitted based script evidence and its produce impeachment *8 of his cross-examination of on his review to proceeding failure at the state habeas (Stover) McCall, he must it was obvious transcript disclose the of the interview. tape. have heard the addition, maintains failed to Miller Stover about the most dam- in the state- cross-examine McCall Citing numerous comments May aging portions to of the 20 interview damaging ment that would have been (McCall’s alia, Miller, claim the co-defendants said including, inter McCall’s dis- and that left nothing criminal activi- about the murders he previous cussion of Miller’s Miller’s house alone an hour and a half questions whether it would be ty, the State arriving not return until the example, For after and did favorable to Miller. day), something would have description of next Stover statement includes McCall’s furniture, entire any responsi- had he received the stolen but denied asked about bility disposing of tape transcript. the .38 caliber hand- gun. At the district court evidentiary May interview Miller next claims the 20 that, hearing, although Stover testified he because, favorable as the district court remember, could not specifically he did not found, it constituted a “hornbook exam- notes; May believe he received the 5 he ple[] impeachment evidence”. USDC testified were material because of May at Opn. 26. McCall’s their in impeaching usefulness McCall and testimony. differed from his trial There- the extent to which the State relied on fore, according to it could be used testimony. McCall’s to and was thus impeach McCall favorable to Miller. The State maintains the notes were nei- suppressed ther They nor material. re-
Finally, Miller asserts the state- impression flect Olsen’s that McCall was material, impor- ment is based on several being State, truthful. According to the it tant differences and McCall’s between (Olsen) because prosecutor and Mil- testimony trial and the State’s reliance on (Stover) ler’s questioned counsel at McCall testimony, particularly at sen- McCall’s trial prior about his inconsistent state- tencing. emphasizes especially Miller ments, Miller cannot demonstrate the 5 to men- McCall’s failure the statement May interview notes sup- were either searching night tion for the bodies on the pressed or material. Miller; murder, either alone or with instead, claimed he left Miller’s May Miller maintains the 5 notes from approximately p.m. house at 9:00 demonstrate, alia, McCall’s interview inter that, according asserts to Stover’s testimo- many McCall met with Olsen more ny evidentiary at the district court hear- than at times he admitted trial and con- ing, testimony seeing McCall’s about theory tribute the defense that McCall bodies, including description his detailed of pandered prosecutors. Miller contends position appearance, their was some of in finding the district court did not err the trial. Miller damning most notes, conjunction May with other persistent contends the State’s references material for sentenc- closing argument to McCall’s ing. Opn. USDC at 26. materiality any demonstrates the infor- mation that could have been used to im- 3. him. peach importance Given the testimony, Miller con- State McCall’s discussed, May interview, As at his 5 tends there is having Morris denied a .38 caliber hand- that, impeached, had it been at least one gun, stating he had a .22 caliber hand- juror spe- would have answered one trial, gun gave that he never to Miller. At differently. cial issues question did not Morris about these Stover evidentiary At
denials. the district court hearing, testified had he been Stover statement, transcription of he would have provided Olsen’s notes Morris’ interviews, implied him including impeached perhaps covers several with and *9 McCall, Miller, with McCall and Morris. At McCall’s 5 that was the shooter. interview, acknowledged Morris’ having he The district court determined ... previously, impeach- been untruthful admitted to statement was “hornbook and, dispose together with other helping Segura and Miller the ment evidence” them; suppression objected; its re- asked for Stover Olsen objection. Brady sentencing. violation and the court sustained the in a sulted again Stover later asked for the state- Opn. at 26. USDC ments, again but the trial court denied his Miller cannot dem- The State maintains request. specifi- The affidavits were not suppressed. onstrate the notes were cally addressed at the district court evi- alternative, that, it contends even if the dentiary hearing. did not receive the notes about Stover statement, prior inconsistent Morris’ While State concedes the affidavits light statement was not material in the suppressed, were their maintains: sub- following corroborating Mor- stance was to disclosed Stover the of- testimony: Segura and, ris’ trial testified he reports; fense if not even so dis- stopped prior closed, and Miller at Morris’ house they were not material. The State murders; that, to the McCall testified af- also maintains: the statements are inad- murders, ter the he received the .38 cali- hearsay missible and thus cannot be mate- handgun rial; admissible, ber from Miller and returned it they if even were because Morris; and, neighbor, Tommy Morris’ they testimony are not at inconsistent with Reyes, gave gun testified Morris him the shooter, trial that they Miller was a could keeping for safe after the and, murders. The not affect the sentencing; outcome of gun by investigators Reyes’ was found portions of the affidavits could have been home. harmful to Miller at trial. that, responds had Morris’ testi- Miller counters that the affidavits would
mony impeached, jury been could have been admissible under the Texas connect weapon Miller to the murder Evidence, Rules of because Detective through testimony Segura and Clampitte testified from them and used McCall, both of whom had motivation to them to refresh his recollection. See Tex- implicate satisfy prosecutors. Miller and to Art. Procedures, as Code of CRIMINAL Miller, According to Morris’ statement (1985) (now 38.24, V.A.C.C.P. Tex. R. Evid. leaves open possibility Segura obtained 107). affidavits, 106 and according to gun supports Morris and the Miller, material, were in part due to the theory defense that either by manner which were introduced— Mozingo McCall could have shot Michael through of the homicide de- (the tried). murder for which Miller was tective for through the case: that testimo- Miller maintains it was not error for the ny, jury was invited to conclude Woods district court to find Morris’ statement implicated had himself and Miller to the material to sentencing. four affiants. portions Miller contends affidavits, importantly most White’s that Woods said the other discussed,
As starting boot, with pulled hte cross- shooter the .38 from sup- trial, examination at port the four affidavits of a conclusion that someone other than non-testifying shooter, by because, witnesses were covered Miller was the according Clampitte, Detective clearly who testified to hav- it was established at trial ing shortly taken them after the murders. that he was not wearing boots at the time The Detective had the affidavits when he of the murders. points Miller also and, point, testified at one refreshed his White’s statement in his affidavit recollection reviewing day them. After the after the Woods denied Mil- affidavits, Detective testified to having the ler was involved. provides Jones’ affidavit
251 (5th 411, Cir.1992), denied, a .45 was used in may have said 419-420 cert. Woods murders; 925, 3044, 509 supports Miller claims this U.S. 113 S.Ct. 125 the L.Ed.2d (1993). was known to 730 possibility Segura, who .45, According to have a was also armed. evaluating suppressed in affida- 1. together suppressed with the other
vits First, the evidence from 5 and district court did not err in May interviews with McCall lacks force juror at determining least one would have other, in light overwhelming evi answered the deliberateness issue differ- presented dence at trial. For example: ently. (1) Jimmy Miller admitted to Douglass (2) “ripped furniture; had off’ some
C. Ronald Theiss testified Miller brought elements, Brady-claim For the three the Segura’s shop repair car to his for and maintains the evidence in issue is not repainting and left new furniture his material; addition, it claims: it did not (3) time; yard front at that same Segura evidence, other than the four affi- suppress great testified in detail about Miller’s davits; any suppressed evidence was Whitt; (4) shooting both Mozingo and light favorable to Miller. In the of our by was seen Woods Robert Fletcher with holding, infra, is not immediately the victims before their mur jury’s answering material either ders, and Segura’s Woods was seen in car affirmative, special issues we people with two other around the same need not decide whether the evidence was (5) time; Miller tried to sell the stolen (It suppressed ap- either or favorable. (6) murders; furniture soon after the Mil however, pears, portion substantial fingerprints ler’s were found a piece of it was neither nor favor- paper in the back of the furniture truck able.) and on one of the stolen tables stored in a (7) warehouse; Segura Miller and rented a Again, evidence is material under storage unit to store furniture in the same Brady if there is a facility by used mur McCall soon after the (here of the proceeding result sentenc (8) ders; Morris testified Miller obtained ing) would have been different had the (9) him; handgun .38 caliber disclosed; evidence been a reasonable McCall testified Woods and admit probability is one sufficient to undermine robbing ted to the victims. None of this Kyles, confidence in the outcome. by evidence could undermined either of be 433-34, 1555. As U.S. S.Ct. dis given by statements McCall. cussed, for determining materiality, the ev “collectively, idence is considered not item Miller contends could have im- Stover by item”. Id. at peached S.Ct. “We McCall’s on the basis of tendency prior evaluate the untruthfulness. That McCall had force item; however, previously, undisclosed evidence item there been untruthful way. presented jury is no other We evaluate its cumula to the because McCall ad- purposes materiality sepa tive for mitted it on direct examination. Stover effect rately impeached ...Id. at 437 n. 115 S.Ct. also this informa- with added). (emphasis questioned If the evidence tion and motivations McCall’s provides only impeachment testifying. jury opportu- incremental had the value, nity credibility Brady weigh does not rise to the level of McCall’s and cred- Collins, materiality. testimony accordingly. See Drew v. 964 F.2d it his *11 failure to it to at request; McCall’s men- turned Morris Miller’s Miller contends May viewing neighbor, Reyes, the Morris’ a witness who tion in his 20 alone, Segura, or with on the had no other connection to Miller bodies either McCall, particularly proba- gave the murders is or testified Morris him the night of However, handgun keeping McCall’s failure to do so is .38 caliber for safe after tive. understandable; and, murders; points as the investigators McCall advised out, house; likely not make it more or less they gun does could find the at Morris’ committed the crimes for which gun Reyes’ ga- that Miller was recovered from penalty rage; the death was warranted. and bullets recovered from the bod- ies were consistent with the .38 recovered May interview of Olsen’s notes of the addition, noted, Reyes’ garage. from In as relatively impor- are brief. Most McCall girlfriend grand- Miller’s then was Morris’ admitting tantly, they contain McCall’s he statement, child. his Morris also stat- previously had not been truthful and his ... ed: “He not know whether [did] [Mil- do denying having anything pos- with get pistol ler] was able to a from his house. of, the sessing, disposing .38 caliber Perhaps had left or hidden one [Miller] Again, handgun after the murders. Miller However, there earlier. he did not re- have maintains Stover could used this evi- seeing get pistol member from [Miller] However, impeach dence to McCall. as permission.” his house with Obviously, his noted, questioned and both Olsen Stover was, alia, very this indicates Miller inter prior inconsistent state- McCall about capable obtaining gun from Morris’ And, ments. Stover elicited an admission home. only told he the State about Miller’s comments to him after 3. pleas on guilty
McCall entered three new charges. A of all of McCall’s testi- review Finally, affidavits, the four mony thoroughly reveals that he was im- many ways, support guilt and do peached as dishonest and a criminal. Be- Segura not contradict and McCall’s testi thoroughly impeached cause McCall was at mony. None of the affiants were wit trial, May the notes of the 5 and 20 inter- murders; robbery nesses to the and them impeachment views have incremental only knowledge was from Woods’ state value. ments. Given the circumstances sur rounding Woods’ statements to the four affiants, reliability their highly suspect. is
Likewise, May Holsinger’s notes of the White and affidavits reflect light Morris interview lacked force most Woods’ statements were made late testimony of trial about his at night marijuana. .38 caliber after had smoked handgun. Those notes and Morris’ trial forming Conversations the basis of Jones very were brief. That Spears’ Morris and affidavits were in early owning first denied a .38 could not morning drinking be said hours after in a club them, White, sentencing, have affected the outcome of with Holsinger; and particularly light evidence corrob both Jones Spears stated in their affi orating testimony: trial testi davits that appeared high Woods to be Moreover, fied stopped by he Morris’ narcotics. the substance of the prior house to the murders to obtain a presented affidavits was to a substantial gun; degree jury by McCall testified he received the .38 to the Miller’s cross-exami Clampitte. Miller after the murders and re- nation of Detective
D. McCall’s statement could be said *12 tangentially to be even relevant to this Having evaluated each item of issue—his statements Miller was not we must now evaluate the cumulative ef- statement, violent. This made Miller’s purposes materiality. of Of fect crime, friend and partner admitted in course, so, doing foregoing in discus- the hardly could be material. in play. sion of the evidence is example, prior For to the murders in early pleaded had guilty Miller 1. truck, stealing March 1980 to for which jury special required The first issue he was sentenced to probation. That Oc- to find Miller’s conduct that caused Mi- tober, probation revoked, and he Mozingo’s chael death was both deliberate was sentenced years to three in prison expectation and with reasonable death pleaded guilty when he an stealing auto- contends, occur. repeatedly would Miller mobile while on probation. punish- At the noted, court alleg- and the district that the phase, ment in addition to these two con- edly suppressed evidence undermines Mil- victions, testimony was offered However, after ring ler’s role as the leader. role, Miller was released from penitentiary, even if he did not have that there is he had been robbery involved an armed overwhelming deeply evidence he was in- illegal of robbery drugs planned and another drug volved in the and murders. In (additional conduct). words, robbery other his conduct was deliberate. criminal And, given overwhelming evidence of The two convictions and additional crimi- in the and of nal conduct crimes occurred between when Miller involvement at two of participants being years age least was 18 in 1980 and when he armed, completely implausible it is Miller conjunc- committed the instant murders in participated anticipated could have and not robbery tion with armed in early 1982. death would occur. Accordingly, the argued jury that Miller’s criminal conduct had progres- Accordingly, having reviewed the rec- sively become more violent. This addition- ord, in the light pre- the evidence al criminal provided conduct further ba- jury, sented to the the brutal nature of the jury sis on which the could have found crimes, and the callousness with which the against dangerousness Miller on the future treated, victims were do not find a we special issue. probability any juror reasonable would have answered the special deliberateness sum, given history In Miller’s criminal differently, if all allegedly issue even and the nature of the there is no suppressed evidence had been disclosed. probability any juror would special
have answered that issue different- ly allegedly suppressed had all the evi- disclosed; dence been there is no reason- special required The second issue able that such disclosure of jury to find commit Miller would both vio- in a evidence would have resulted different a continuing lent crimes be threat (future Restated, sentencing. outcome society dangerousness). It does light comprehensive appear alleg- that Miller bear- contends ing sentencing, allegedly even if the edly suppressed evidence is material for event, disclosed, special any this issue. for all of evidence had been evidence, only portion such a small this does not undermine our confidence firmatively any special have still received the issues sub would in capital mitted cases. Tex.Crim. Proc. penalty. death 5(a)(l)-(3); § Code Ann. art. 11.071 see Ex parte 115 & n. 49 Graves S.W.3d III. (Tex.Crim.App.2002) (stating that Texas reasons, the condition- foregoing For the exceptions general has three to the rule Miller is granted al relief VACAT- habeas against petitions successive habeas ED; DENIED. and habeas relief is above). listing those described *13 VACATED; DENIED. erroneously The district court read the exceptions first two as two elements of a GARZA, Judge, Circuit EMILIO M. single exception incorrectly and therefore dissenting: determined that Miller would have to dem- that, majority, I conclude Unlike the onstrate that he could meet either the first not exhausted his state although Miller has and Be- exceptions second or the third. remedies, on the merits satisfy denial of relief it that cause concluded he could not 2254(b)(2) appro- § is not under 28 U.S.C. or exception, the second third the district Miller has at least made a priate because court held that no forum Miller had state federal claim for relief. I would bring Brady colorable in claim and that which his to the district court with instruc- remand he had therefore exhausted his state law proceedings for tions either to dismiss holding remedies. This was error be- stay abey failure to exhaust or to and them bring cause Miller would be able to a brings Brady his claim before subsequent application while Miller in Texas court un- Accordingly, I re- a state habeas court. der exception.1 the first spectfully dissent. petitioner brings When a habeas federal claim, present Brady
Miller did not his claim an unexhausted the court should application proceedings in his state habeas because he either dismiss the for failure stay abey did not receive the evidence until to exhaust or and them until a relevant peti- opportunity after he had filed his federal habeas state habeas court has had the Weber, permits subsequent applica- tion. Texas to hear the claim. Rhines v. 544 269, 1534, 1528, penalty tions in death eases three dis- U.S. 125 S.Ct. 161 L.Ed.2d 1) (2005). Rhines, or stay abey- tinct circumstances: when the factual Under legal appropriate basis for the new claims issues ance is when the district court 1) origi- good was not available the time of the finds that: there was cause for the 2) 2) claim; applicant nal can petition; when failure exhaust the the claim is 3) meritless; by preponderance plainly show a of the evidence not there is no juror purposes that would have found the indication that the failure no rational applicant guilty delay. parties but for the violation of the Id. at 1535. The have 3) constitution; elements, can applicant or when the not briefed the first and third so that convincing show clear and the district court would need to make the juror have af- appropriate findings no rational would answered on remand.2 cations, Although many years passed provide guide- Mil- 1. have but it does not such since Brady applications. general- factual basis for his lines for successive See ler learned of the claim, ly Tex.Crim. . Proc.CodeAnn. art. 11.071. he would be it does not seem that time bringing subsequent a barred from it in habe- application. suspect as Article 11.071 has detailed I that the cause for Miller's failure rule, scheduling appli- deadlines for initial habeas to exhaust was Texas’s two-forums element, however, has been interview in which specifically The second he denied briefed, I thoroughly conclude Woods and had confessed the Brady plainly claim is not merit- murders to him and made no mention of pieces various going less because the the crime scene with Miller. together, taken could have raised a reason Those specifically statements contradicted juror in a as to either trial special testimony. able doubt his Had the jury been interrogatory. Bag See United States v. able to hear that in being gen- addition to 667, 682, dishonest, ley, erally 473 U.S. S.Ct. McCall specific had made (1985) (holding L.Ed.2d 481 that evidence statements inconsistent with the heart of Brady if testimony, might is material under there is rea his trial given have had it dis weight. sonable been less provided closed, proceeding important the result of the would corroboration Segura’s ac- different); crime, have been United States v. count of the portrayed which (5th Cir.2004) Sipe, 388 F.3d as leader the killings, weakening so *14 (holding multiple testimony that when there are Bra his could have cast doubt on violations, dy analyze planned the court must the whether Miller killings the suppressed cumulative effect of the evi an actual was shooter.
dence). The second piece allegedly sup- at piece pressed police
The first
of evidence
issue is
evidence was
notes from
transcripts
Morris,
notes and
interviews with interviews with Morris.
who tes-
Effectively impeaching
McCall.
McCall
tified that he
given
had
his .38 caliber
given
crucial
to the defense
handgun
days
was
to Miller in the
before the
murders,
weight
prosecution
jury
impeached
asked the
was not
in-
prior
with
place
testimony.
As the ma-
consistent
McCall’s
statements at all. His testimo-
out,
jority points
generally
ny provided
McCall was
im-
critical corroboration from
peached on cross-examination as a dishon-
someone uninvolved
linking
with the crime
always
est criminal who was not
truthful Miller to one of
weapons,
the murder
during
police
sentencing
with the
the course of the which showed at
that Miller
Nevertheless,
investigation.
there is a had orchestrated the murders in advance.
significant qualitative
majority
Reyes, Segura
difference between The
notes that
that a
generally
witness is
not
and McCall could corroborate Morris’s
however,
specific
gave
testimony. Reyes,
only
truthful and
evidence that he
could
respect
hap-
inconsistent statements with
to the
corroborate Morris’s account of what
before,
subject
testimony.
crucial
I
pened
his
dis-
after the
not
so he
agree
majority’s position
with the
that
could not bolster that
of Morris’s
part
specific impeachment
testimony
material
is
that
important
was most
sen-
in light
tencing,
procured weapon
incremental value
of abundant
i.e. that Miller
general
impeachment
days
material. The de-
in advance of the murders. More-
over,
Segura
fense was
able
cross-examine
and McCall’s corroboration
his statements in the
20 was of limited
limit-
about
value because
their
prevent
bringing
pursue
which would
him from
his
his exhausted claims if he chose to
his
Brady claim in state court while his exhausted
Brady claim in state court. Texas
since
has
pending
claims were
in federal court. See Ex
rule,
lifted its
that
two-forum
which means
Powers,
parte
(Tex.Crim.App.
§ “inappropriate” is perfectly appli-
unless “it is clear that the
cant does not even raise a colorable federal Cain,
claim.” Mercadel v. 179 F.3d (5th Cir.1999) (quoting
276 n. 4 Granberry Greer, 129, 135,
v. 481 U.S. 107 S.Ct. (1987)
cases). above, As demonstrated colorable,
Brady claim is at least so dis- 2254(b)(2) §
missal under inappropriate. is AEDPA,
Under the our task is to review
the state habeas court’s findings and con-
clusions, not to make those determinations 2254(d). §
ourselves. See 28 U.S.C. scheme,
keeping with that I would follow
Mercadel and allow the state court an
opportunity to legal resolve the factual and I dispute.
issues would further instruct determine,
the district court under
Rhines, proceed- whether to dismiss the
ings stay abey them until the state
court has had such an opportunity. *16 MOORE, individually
Charles and on similarly situated,
behalf of all others
George Brown, individually E. “Jack” similarly
and on behalf of all others
situated, Plaintiffs-Appellants,
v. COUNTY, MISSISSIPPI,
ITAWAMBA County, Mississippi
The Itawamba Su
perintendent Education, Itawamba
County Board, Mississippi School De
fendants-Appellees.
No. 05-60060
Summary Calendar.
United States Appeals, Court of
Fifth Circuit.
Nov. notes statements, trial, contradictory the district court suppressed. At McCall were undermined night found as follows. On testified the value of McCall, credibility, as well as Segura’s Segura’s the brother corroborating testimo- McCall, and Morris’ visited McCall girlfriend, Monica then ny. Id. at after the murders had been Miller’s home presence, committed. Outside of affi- suppression concedes The State