Morrow v. Cockrell

Full title: RICKY EUGENE MORROW, Petitioner, v. JANIE COCKRELL, Director, Texas…

Court: United States District Court, N.D. Texas, Dallas Division

Date published: Apr 9, 2002

No. 3:00-CV-2009-L (N.D. Tex. Apr. 9, 2002)

Opinion

No. 3:00-CV-2009-L

April 9, 2002

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

JANE BOYLE, United States Magistrate Judge.

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS

I. Background Nature of the Case: Petitioner Ricky Eugene Morrow (Morrow), an inmate in the custody of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID), filed the instant petition for Liabeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent is Janie Cockrell, Director of TDCJ-ID (the State).

Brief Factual Background: On January 19, 1982, Morrow and his then girlfriend and future wife, Linda Ferguson (Ferguson), robbed Metropolitan Savings and Loan (Metropolitan) and then First Texas Savings and Loan (First Texas). Statement of Facts, Vol. 87 at 1070-92 [hereinafter cited as SF-volume # at page]. During the second robbery, Morrow shot and killed a bank employee, Mark Frazier (Frazier). Id . at 1085-88. Morrow and Ferguson then proceeded to the Park Cities Inn (the inn). SF-86 at 781-82; SF-87 at 1092-93. During a standoff at the inn, both Morrow and law enforcement officers fired weapons. See, e.g., SF-86 at 786-87; SF-87 at 1100-03.

Procedural Background: The State charged Morrow with capital murder of Frazier at First Texas, aggravated robbery at Metropolitan, and attempted capital murders of two law enforcement officers at the inn. See Ex parte Morrow, 952 S.W.2d 530, 533 (Tex.Crim.App. 1997) (en banc decision addressing a state petition for habeas corpus relief related to the attempted capital murder charges).² That habeas decision sets forth the following procedural history of the four interrelated charges:

2 As this state habeas decision accurately sets forth much of the procedural history of Morrow's inter-related convictions, the Court will cite to it for ease of reference when it deems such citation appropriate.

Applicant [(Morrow)] was charged as follows: capital murder (cause no. F-82-83550); aggravated robbery (cause no. F-82-83706); and two attempted capital murders of the officers who were surrounding applicant's motel room (cause nos. F-82-82402, F-82-82403). The trial court appointed counsel who remained applicant's coursel during the disposition of all four cases.

The capital murder charge was disposed of first. Applicant was tried and convicted of capital murder (cause no. F-82-83550). On November 9, 1983, the jury assessed his punishment at death. Direct appeal to this Court was automatic.

On November 23, 1983, while the above conviction was on appeal, applicant entered into a plea bargain to dispose of the remaining charges of aggravated robbery and two attempted capital murders. Pursuant to the plea bargain, applicant pleaded guilty to each of the three charges. In return, applicant received three fifty-year sentences, which were to run concurrently, and all funds seized from him and Ferguson that were not related to the two bank robberies were to be returned to him.

On March 30, 1988, this Court reversed applicant's capital murder conviction. Morrow v. State, 753 S.W.2d 372 (Tex.Cr.App. 1988). The trial court appointed new counsel to represent applicant at his retrial, which began in 1990. During this second trial, applicant testified on his own behalf at the guilt-innocence stage. When he testified as to the facts surrounding the two attempted capital murders and aggravated robbery, the State offered evidence of his judicial confessions, guilty pleas, convictions and fifty-year sentences to impeach his testimony. Likewise, such pleas, confessions, convictions, and sentences were used as evidence of applicant's prior criminal record at the punishment stage. Applicant was again convicted of capital murder and his punishment assessed at death.

Ex parte Morrow, 952 S.W.2d at 533.

Richard Mays, District Court Judge, presided over both capital murder trials. (Pet. Writ Habeas Corpus (Pet.) at 2.) He appointed Bill Bratton and Ron Goranson to represent Morrow on the original four charges. S.H. Tr.³ at 477. Judge Mays appointed Keith Jagmin and Dan Solis to represent Morrow at the second trial. Id . at 477, 483.

3 "S.H. Tr." denotes the state habeas records separately paginated in four volumes.

At his second trial Morrow took the position that he was so intoxicated on drugs and alcohol that he could not have formed the requisite intent to commit capital murder. SF-83 ⁴ at 12-14, 16-17, 21-22 (opening statement); T. Tr.⁵ Vol. 1-D at 698-700 (jury charge for voluntary intoxication).⁶ The jury had the option of convicting Morrow of capital murder or felony murder. T. Tr. Vol. 1-D at 698-99. The trial court instructed them to acquit Morrow of capital murder, if they had a reasonable doubt that he was temporarily insane due to voluntary intoxication and was incapable of forming the specific intent to kill Frazier. Id . at 699-700. The State asked them to convict Morrow of capital murder based upon the terror he imposed upon the bank employees and their testimony that he was not intoxicated and that he exhibited a cavalier attitude as shown by the way he exited First Texas and testimony of Jan Noble that he was laughing as he left the parking lot. SF-90 at 1652-58, 1704-05, 1719-20.

4 Volume 33 his two supplements. The first encompasses pages 51 to 100. The second encompasses pages 151 to 200. The main volume contains all other pages. The Court need not differentiate between the supplements and the main volume as the page references reveal whether the cited material is in the main volume or a supplement.

5 "T. Tr." denotes the trial transcript of this case.

6 The propriety of such charge is discussed infra at footnote sixteen.

After the close of the evidence, Morrow was again found guilty of capital murder. SF-90 at 1721. After hearing evidence regarding punishment, the jury affirmatively answered a special question regarding the intentional and deliberate nature of the killing of Mark Frazier and a special question regarding the future dangerousness of Morrow. SF-98 at 3396-97. The trial court then imposed a sentence of death. Id . at 3397.

On direct appeal, the Texas Court of Criminal Appeals (CCA) affirmed the second conviction for capital murder. Morrow v. State, 910 S.W.2d 471, 471, 474 (Tex.Crim.App. 1995). Morrow subsequently filed a state application for writ of habeas corpus and timely supplemented it. See Ex parte Morrow, No. 6, 208-09, slip op. at 2 (Tex.Crim.App. Oct. 27, 1999) (not designated for publication). John Bradshaw, a visiting judge, handled the habeas proceeding. S.H. Tr. at 162. Judge Mays had retired. (Pet. at 2.) Judge Nancarrow, the presiding judge of the convicting court, had recused himself. S.H. Tr. at 154, 159, 161. Judge Bradshaw denied Morrow an evidentiary hearing. Id . at 389. He adopted the State's proposed findings of fact and conclusions of law and recommended denial of habeas relief. Id . at 448. He later adopted the State's proposed findings of fact and conclusions of law with respect to Morrow's supplement to his application for writ of habeas corpus and recommended denial of habeas relief. Supp. S.H. Tr.⁷ at 5-15. The CCA ultimately denied relief in an unpublished written order that adopted Judge Bradshaw's findings of fact and conclusions of law, except for a conclusion that Morrow had waived his claims of ineffective assistance of counsel by presenting a multifarious ground for relief. See Ex parte Morrow, No. 6, 208-09, slip op. at 2 (Tex.Crim.App. Apr. 19, 2000) (not designated for publication).

7 "Supp. S.H. Tr." denotes supplemental state habeas records received in the CCA on January 26, 2000, and that are attached to Ex parte Morrow, No. 6, 20809 slip op. (Tex.Crim.App. Mar. 15, 2000) in the state records supplied to this Court.

In September 2000, Morrow filed the instant petition for federal habeas relief challenging the judgment of conviction and sentence imposed by the trial court. On February 14, 2001, the State filed an answer with brief in support and furnished the stare-court records.

Substantive Issues: Morrow asserts the following claims:

1. He was denied due process of law and a fair trial when the State failed to disclose the following documents relating to his intoxication:

a. a report of the FBI which reflects that witness Jean Blum told Agent Borrero that Morrow had bloodshot eyes, a "wild look", and appeared to be "on drugs" or intoxicated while he robbed Metropolitan (Habeas Ex. C — S.H. Tr. at 96-99, with unredacted version of first two pages at 246-47);⁸

b. an FBI report which indicates that witness Jo Brown told an unidentified agent that Morrow was "high" at First Texas (Habeas Ex. D — S.H. Tr. at 100, with no unredacted version);

c. an FBI teletype which reflects that unidentified witnesses at Metropolitan said that Morrow was "high" on drugs or alcohol (Habeas Ex. H — S.H. Tr. at 101-12, with no unredacred version);

d. an FBI memorandum which indicates that unidentified witnesses at both banks said that Morrow was "high" on drugs or alcohol (Habeas Ex. F — S.H. Tr. at 113-15, with no unredacted version); and

e. an FBI report prepared by Agent Cutcomb which reflects that Morrow had slightly slurred speech and "wide" eyes upon his arrest (Habeas Ex. G — S.H. Tr. at 116-18, with unredacted version found at 248-50).

2. He was denied due process of law and a fair trial when the State failed to disclose the following documents relating to the manner in which he shot Frazier:

a. an FBI report that reflects that witness Jo Brown told an unidentified Agent on the date of the offense that Morrow shot Frazier, but does not reflect that she told the officer anything about how he shot Frazier (Habeas Ex. D);

b. a supplemental offense report which reflects that Brown told Officer Myers on the date of the offense that she saw Morrow enter the bank and walk to the teller counter with Frazier and that Tammy Roy saw the shooting (Habeas Ex. T — S.H. Tr. at 574);⁹ and

c. an FBI report which reflects that witness Kathy Crouse told Agent Garcia on the date of the offense that Morrow had the .25 pistol in his right hand and the .38 revolver in his left hand; that she could not tell which pistol fired the shot; and that she could not recall whether the money bag was in his hand or on the counter when he fired the fatal shot (Habeas Ex. I — S.H. Tr. at 123-27, with unredacted version of first two pages and an additional unredacted page found at 253-55).

3. He was denied due process of law and a fair trial when the State failed to disclose FBI reports and an FBI teletype which reflect that witnesses Jo Brown, Kathy Crouse, and Nancy Galloway gave much different descriptions of Morrow's departure from First Texas than they described at trial (Habeas Exs. D, E, I, and J — Habeas Ex. J is found at S.H. Tr. at 128-30 with an unredacted version of the first two pages at 256-57).

4. He was denied due process of law and a fair trial when the State failed to disclose the following documents that could have impeached witness Jan Noble's testimony that he was laughing and smiling after the shooting:

a. a supplemental offense report of Officer Myers which reflects that Noble observed Morrow from her office, not her car (Habeas Ex. T) and

b. an FBI report prepared by Agent Meyer which reflects that Morrow's vehicle passed Noble "very rapidly" (Habeas Ex. K — S.H. Tr. at 131-32, with an unredacted version of the first page at 258).

5. He was denied due process of law and a fair trial when the State failed to disclose an FBI teletype, an FBI memorandum, and FBI reports prepared by Agents Cutcomb and Kilmer which reflect that Morrow fired only two shots at the Park Cities Inn (Habeas Exs. E, F, G, and L — Habeas Ex. L is found at S.H. Tr. at 133-34 with an unredacted version of the first page at 259).

6. He was denied due process of law and a fair trial when the State failed to disclose documents which indicate that officers, other than Yunessa and Barnum, shot into the motel room and that more shots were fired than the officers admitted (Habeas Ex. E, G, and M — Habeas Ex. M is found at S.H. Tr. at 135 with no unredacted version);

7. He was denied due process of law and a fair trial when the State failed to disclose documents which relate to where the State found his wallet (Habeas Exs. F, N, and O — Habeas Ex. N is found at S.H. Tr. at 136-38 and Habeas Ex. O is found at S.H. Tr. at 139-41).

8. He was denied due process of law and a fair trial when the State used perjured testimony at trial.

9. He was denied effective assistance of counsel at the guilt-innocence stage of trial when his attorney:

a. stated in opening statements that he would prove that Morrow was innocent of capital murder;

b. failed to discover and use FBI reports to impeach witnesses;

c. failed to impeach witness Jan Noble with testimony from a previous trial of this case;

d. failed to impeach Detective Baird with testimony from a previous trial of this case; and

e. failed to conduct an adequate investigation of the shooting at the Park Cities Inn and call Agent Cutcomb as a witness.

Exhaustion: The State contends that Morrow has sufficiently exhausted his state remedies except with respect to his claims relating to the suppression of the Dallas police report of Officer Myers (Habeas Ex. T). With respect to those claims, it argues that they have no merit and that they are procedurally barred from federal habeas review. It does not seek dismissal for the failure to exhaust, but rather on the related ground of procedural bar. Having examined the state habeas record, the Court finds that Morrow exhausted all state remedies with respect to all claims he raises in the instant petition. Morrow specifically included the claim relating to Officer Myer's report in his Supplement to Application for Writ of Habeas Corpus. See S.H. Tr. at 454-55.

8 Morrow attached to his state petition redacted copies of several documents that he claims were suppressed by the State. The State attached unredacted copies of the documents it possessed to its answer to Morrow's state petition. For ease of reference, the Court will generally cite to Morrow's redacted state habeas submissions. Occasionally, for clarity, the Court has cited to the State's unredacted versions of Morrow's exhibits.

9 This supplemental police report is found at several locations within the state habeas transcript as Habeas Exhibit T. See, e.g., S.H. Tr. at 367, 459, 574. The Court utilizes the copy found on page 574, because it is the most legible copy in the state habeas transcript.

Evidentiary Hearing: Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary. Morrow urges the Court to conduct an evidentiary hearing, because the state habeas court did nor afford him a full and fair hearing on the factual issues of his case. He asserts that the state court failed to hold an evidentiary hearing and instead simply decided the factual issues on the basis of competing affidavits. He contends that no judge can confidently determine the factual issues of this case without conducting a hearing to assess the credibility of the witnesses. The Fifth Circuit, however, has recently rejected a suggestion that a petitioner is "entitled to an evidentiary hearing in the federal district court because he was not given a live hearing in the state court." Miller-El v. Johnson, 261 F.3d 445, 454-55 (5th Cir. 2001), cert. granted in part, 122 S.Ct. 1202 (2002) (granting certiorari on an unrelated issue). The fact that the state court merely conducted a paper hearing is insufficient alone to necessitate an evidentiary hearing at the federal level.

II. Factual Background

Trial testimony adduced the following facts regarding the events at issue. In the late morning of January 19, 1982, Morrow and Ferguson proceeded to a laundromat so that Ferguson could do their laundry while Morrow went to a pawnshop to purchase a radio. SF-86 at 766-67; SF-87 at 1057-59. He later returned for Ferguson and they in turn went back to the pawnshop ostensibly to purchase a television. SF-86 at 767; SF-87 at 1060. They instead purchased two handguns — a smaller .25 pistol and a larger .38 revolver. SF-83 at 30-31; SF-86 at 768; SF-87 at 1062-64. After purchasing the weapons, they proceeded to a mall to purchase ammunition. SF-86 at 772; SF-87 at 1065-66.

Ferguson and Morrow arrived at Metropolitan at around 4:15 p.m. SF-83 at 69; SF-86 at 774; SF-87 at 1070. Morrow went inside the bank and "started screaming and cursing and hollering and directing profanities at everyone in the bank and demanding the money." SF-87 at 1070; see also, SF-83 at 59-60. Joena Bailey Shipley (Shipley), Jean Cullum Blum (Blum), W.L. Miller (Miller), and Carol Fritchie (Fritchie) were working at Metropolitan at the time of the robbery. SF-83 at 62, 92. Morrow exited the bank with a sack of money, including coins. SF-87 at 1070-72. As he exited, the sack ripped and his gun discharged.¹⁰ Id . at 1075; SF-86 at 776. He stopped to retrieve the dropped money. SF-86 at 776; SF-87 at 1075. Two bystanders, Louis Wong and Bo Holmes, witnessed a man leaving the scene with money falling from a ripped sack. SF-83 at 79-87, 116.17. No one disputes that the man they saw was petitioner Ricky Morrow.

10 Whether Morrow dropped the gun was subject to some dispute at trial. See, e.g., SF-86 at 776; SF-88 at 1185-88, 1195-96, 1327, 1359-60; 1367-70; 1376-77; SF-89 at 1434-35. There is no dispute, however, that the gun discharged.

John Norton (Norton), a Dallas police officer at the time of the robberies, interviewed witnesses at Metropolitan. SF-85 at 524-25. After the Metropolitan robbery, Dallas police officer K.C. Edmonds (Edmonds) interviewed Shipley, Blum, Miller, and Fritchie. SF-84 at 372-73. Agent Nelson Borrero (Borrero) of the Federal Bureau of Investigation (FBI) also interviewed Blum. S.H. Tr. at 247.

After leaving Metropolitan, Morrow and Ferguson arrived at First Texas between 4:30 and 5:00 p.m. SF-83 at 153; SF-86 at 777; SF-87 at 1076-77. As Morrow entered First Texas he approached Kathy Knoebber Crouse (Crouse) at her desk. SF-86 at 716; SF-87 at 1079. When Mark Frazier (Frazier), another bank employee, asked Morrow if he needed assistance, Morrow "started Screaming and ranting and raving and cursing and hollering it was a robbery." SF-87 at 1078-79. He led Frazier at gunpoint to Tammy Roy's (Roy) teller window and pointed one pistol at her and another pistol at Frazier. Id . at 1079-80; SF-83 at 207-08. After getting a sack of money from Roy, Morrow shot and killed Frazier and exited the bank. SF-87 at 1085-88.

Jo Brown, Operations Supervisor at First Texas, witnessed the events at First Texas on January 19, 1982. See SF-83 at 163-202 (trial testimony); S.H. Tr. at 100 (an FBI report that indicates that Brown witnessed the events).¹¹ Nancy Galloway, another employee of First Texas, also witnessed the events of that date. See SF-83 at 135-51 (trial testimony); S.H. Tr. at 128-30, 256-57 (an FBI report that indicates that Galloway witnessed the events). Jan Noble, a real estate agent with an office in the same building as First Texas, witnessed Morrow and Ferguson leave the scene in their vehicle. See SF-84 at 258-91 (trial testimony); S.H. Tr. at 258, 574 (an FBI report and a supplemental police report that indicate that Noble witnessed the vehicular departure).

11 The report has "Jo Brown" written in the margin. S.H. Tr. at 100. The parties, furthermore, agree that the report concerns an interview of Ms. Brown.

After robbing First Texas, Morrow and Ferguson proceeded to the Park Cities Inn and rented Room 311. SF-86 at 781-82; SF-87 at 1092-93. Richard A. Acree (Acree), a police officer then employed by the University Park Police Department, spotted their vehicle at the inn. SF-84 at 339. He spoke with Sherry Baker, the clerk-receptionist for the inn, and ascertained that Morrow and Ferguson were in Room 311. Id . at 293-94, 339-41. He called for assistance and several units arrived on the scene soon thereafter. Id . at 341.

Numerous law enforcement officers from the FBI, Dallas Police Department, and University Park Police Department arrived at the inn, converged on Room 311, and demanded that Morrow and Ferguson surrender. See, e.g., SF-84 at 374-75; SF-86 at 784; SF-87 at 1094. FBI Agent Thomas Yunessa (Yunessa),¹² armed with an assault rifle, and Dallas Police Officer P.T. Barnum (Barnum), armed with a shotgun, crouched behind a toppled coke machine in the hall outside the room. SF-84 at 556, 559. Officers Edmonds, Luke Robertson, and Harold Rice, as well as Detectives Charles Hallam, John Landers, and Jack Baird of the Dallas Police Department, were also present at the inn. Id . at 374-75, 415-17. Ferguson voluntarily surrendered. Id . at 375-76, 417-18; SF-86 at 785; SF-87 at 1095, 1097. Morrow then fired his .38 revolver. SF-87 at 1100. Law enforcement officers fired weapons and Morrow subsequently surrendered. See, e.g., id . at 1100-03; SF-86 at 786-87.

12 In some portions of the statement of facts, Agent Yunessa is referred to as Agent Yannessa. See, e.g., SF-85 at 555, 559.60. Both Morrow and the State refer to him as Agent Yunessa. The Court thus utilizes that spelling.

Special Agent David H. Cutcomb (Cutcomb) of the FBI "was dispatched to conduct an investigation regarding the robbery of [First Texas]." S.H. Tr. at 248-50. Before arriving at First Texas, he heard a report regarding the Park Cities Inn and thus proceeded to that location. Id . Special Agents John Meadors and Tommy Kilmer met him there. Id . Cutcomb arrived after Ferguson had surrendered. Id . Agent Kilmer heard the gunfire as he headed for the stairs to Room 311. Id . at 133, 259. Although Cutcomb did not witness the gunfire, he did witness the subsequent stand-off at Room 311. Id . at 248-49. Both Cutcomb and Kilmer saw Morrow surrender. Id . at 133, 249, 259. Cutcomb investigated what happened at the inn and noted that Agent Yunessa and a State law enforcement officer had fired their weapons. Id . at 249-50. Kilmer helped clear Room 311 after the arrest. Id . at 133-34. Although Agent Meadors did not personally participate in the gunfire or Morrow's arrest, he did hear the gunfire. SF-85 at 515, 518.

B.G. Brown, a Detective with the University Park Police Department at the time of the robberies, arrived at the inn after Morrow's arrest and conducted an investigation. SF-85 at 471.

Special Agent Richard T. Garcia (Garcia) of the FBI interviewed Crouse after the robbery and shooting at First Texas. S.H. Tr. at 253-55. Special Agent H. Lamar Meyer interviewed Nancy Galloway aud Jan Noble regarding the events at First Texas. Id . at 256.58.¹³

13 The foregoing factual background is essentially undisputed. As indicated by the substantive issues raised in this case, there were five issues that were in dispute at trial: (1) Morrow's level of intoxication January 19, 1982; (2) the manner in which Morrow shot Frazier; (3) the manner in which Morrow exited First Texas; (4) his demeanor as he left the parking lot of First Texas; and (5) what precisely happened at the inn. The Court will set forth the conflicting testimony on these issues when such evidence becomes pertinent to the issues before it.

III. Standard of Review

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act substantially changed the way federal courts handle habeas corpus actions. It applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Title I of the Act thus applies to his petition.

Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief

with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

"In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.), cert. denied, 531 U.S. 849 (2000).

Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.), cert. denied, 122 S.Ct. 194 (2001). A decision is contrary to clearly established Federal law, within the meaning of § 2254(d)(1), "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 529 U.S. at 413; see also, Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." 529 U.S. at 407. "[A] federal habeas court making the "unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id . at 409; see also, Penry, 532 U.S. at 793 .

Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000), cert. denied, 532 U.S. 949 (2001). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were `based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.) (as modified on denial of rehearing), cert. denied, 531 U.S. 1002 (2000).

In this case, Morrow raised each of his claims in his state-court petition. S.H. Tr. at 23-35, 65-72, 453-55. The Texas Court of Criminal Appeals' initial ruling stated "DENIED WITH WRITTEN ORDER." See Ex parte Morrow, No. 6, 208-09, slip op. at 1 (Tex.Crim.App. Mar. 15, 2000) (not designated for publication). In the written order, the CCA denied habeas relief after "adopt[ing] the trial judge's findings and conclusions." Id . at 2. On its own motion, however, the CCA thereafter withdrew that order. See Ex parte Morrow, No. 6, 208-09, slip op. at 1 (Tex.Crim.App. Apr. 19, 2000) (not designated for publication). It, nevertheless, again denied habeas relief, after "adopt[ing] the state habeas judge's findings and conclusions" except for a finding that Morrow "waived his claims of ineffective assistance of counsel because they were multifarious and therefore presented nothing for review." Id . at 2.

In Texas jurisprudence, a "denial" signifies an adjudication on the merits, whereas a "dismissal" signifies that the court declined to consider the claims on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997). Federal courts thus construe the statement, "Application denied without written order," as a rejection of the claims on the merits. Bledsue v. Johnson, 188 F.3d 250, 257 (5th Cir. 1999). A denial with a written order would likewise be construed as a rejection of the claims on the merits. See Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999) (recognizing that denials are considered as adjudications on the merits in Texas state courts). In this instance, therefore, the state court rejected Morrow's claims on the merits. The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply.

III. Presumption of Correctness

Before discussing the substantive issues raised in the instant petition, the Court will briefly address a threshold issue raised by Morrow, i.e. whether the Court should presume the factual findings of the state court correct. The state habeas court made numerous findings of fact.¹⁴ Section 2254(e)(1) of Title 28 of the United States Code provides a statutory presumption of correctness for such findings. Section 2254(e)(1) provides:

14 The Court sets forth many of the findings of fact and conclusions of law of the state court infra at pages 18-24.

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

Although this "amended federal habeas statute `retain[s] the traditional presumption of correctness afforded to state court factual determinations', [it also] apparently places a more onerous burden on the petitioner in that the petitioner must now rebut the presumption of correctness by clear and convincing evidence." Jackson v. Anderson, 112 F.3d 823, 824 (5th Cir. 1997); see also, Miller-El v. Johnson, 261 F.3d 445, 454 (5th Cir. 2001) (recognizing that § 2254(e)(1) places a heavier burden on petitioner than did the previous version), cert. granted in part, 122 S.Ct. 1202 (2002) (granting certiorari on an unrelated issue). "The pre-AEDPA standards governing the presumption of correctness afforded state-court factfinding . . . were somewhat less stringent than the new subsection (e) of the AEDPA." Livingston v. Johnson, 107 F.3d 297, 302 (5th Cir. 1997).

Morrow argues that the Court should not automatically presume the factual findings of the state habeas court to be correct, because that court made them solely from a "paper record." He specifically argues that the Court should not presume correct the findings of the state habeas court that the State disclosed certain documents to him. He cites Perillo v. Johnson, 79 F.3d 441 (5th Cir. 1996); Amos v. Scott, 61 F.3d 333 (5th Cir. 1995); and Nethery v. Collins, 993 F.2d 1154 (5th Cir. 1993) for support. The State argues that Morrow asserts the wrong standard of review and that the AEDPA amendments effectively repealed the rule set forth in the pre-AEDPA cases. It argues that no exceptions exist for applying the statutory presumption of § 2254(e)(1).

Morrow's argument is easily disposed of based on the Fifth Circuit's recent holding in Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001), rejecting a similar challenge to the application of the presumption of correctness to state court findings based on an argument that the petitioner had not received a full and fair hearing before the state court. In Valdez, the Fifth Circuit held that in cases governed by the AEDPA, a full and fair hearing at the state court level is no longer a "prerequisite to operation of AEDPA's deferential framework" as it was under pre-AEDPA standards. Id . at 948. Since Morrow's argument that the state court's factual findings are not entitled to deference rests upon his assertion that the state court hearing process was inadequate, it fails under Valdez.

The dictates of 28 U.S.C. § 2254(e)(1) are clear: "The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Morrow has not overcome the presumption of correctness by clear and convincing evidence. He merely cites to pre-AEDPA case law and argues that, when the trial and habeas judges are different, the presumption does not apply. This Court thus finds that the findings of fact in the state habeas proceeding are entitled to the presumption of correctness accorded by 28 U.S.C. § 2254(e)(1).

IV. Examination of the Issues

Morrow claims he is being held unlawfully because the State withheld documents and utilized perjured testimony and because his attorney rendered ineffective assistance.

A. Suppression of Evidence

Morrow claims he was denied due process of law and a fair trial when the State failed to disclose thirteen documents relating to his intoxication, the manner in which he shot Frazier, the manner in which he departed First Texas, his demeanor as he left the parking lot of First Texas, and what happened at the Park Cities Inn. Specifically, he contends that the State suppressed Habeas Exhibits C, D, E, F, and G, as they relate to his level of intoxication on January 19, 1982; Habeas Exhibits D, I, and T, as they relate to the manner in which he shot Frazier; Habeas Exhibits D, E, I, and as they relate to the manner in which he departed First Texas; Habeas Exhibits K and T, as they relate to his demeanor as he left the parking lot of First Texas; and Habeas Exhibits E, F, G, L, M, N, and O, as they relate to the events at the inn.¹⁵

15 In his initial state habeas petition and subsequent supplement Morrow argued that the State had suppressed the documents cited above. He also complained at the state level that other documents not included in his federal petition were not properly disclosed by the State. This Court's findings and analysis will focus solely on those documents he challenges in the instant federal petition.

In short, Morrow contends that the State suppressed thirteen documents (Habeas Exs. C, D, E, F, G, I, J, K, L, M, N, O, and T). He made the same claims (and others) in his state habeas petition and supplement thereto. Judge Bradshaw adopted the findings of fact and conclusions of law submitted by the State. S.H. Tr. at 448. He also entered specific findings of fact and conclusions of law with respect to the supplemental briefing in which he also adopted the proposed findings of fact and conclusions of law submitted by the State. Supp. S.H. Tr. at 5-15.

1. State Court Consideration of Claim

With respect to the suppression of documents at issue in the instant federal petition, Judge Bradshaw adopted the following findings of fact and conclusions of law:

The Court finds that the specific documents of which Applicant [(Morrow)] complains in this ground for relief are thirteen reports generated by various employees of the Federal Bureau of Investigation, labeled as Applicant's exhibits A through M.

4. The Court finds that the State has submitted affidavits from Dan Hagood, formerly a Dallas County District Attorney and lead prosecutor in the 1990 retrial of Applicant and Wilbur M. Gregory, Jr., Chief Division Counsel of the Dallas office of the FBI, to explain these records (State's Exhibit A State's Exhibit B).

5. The Court further finds that unredacted copies of the complained-of reports in possession of the State are State's Exhibit C.

6. The Court finds that Applicant's exhibits F and M were administrative memos prepared for updates to supervisors in the FBI Washington headquarters office, and these reports were never tendered to the FBI Dallas office personnel, were not part of the investigative record, and were not available to Dallas County prosecutors, who were not aware of their existence. (See State's Exhibit A State's Exhibit B). The Court further finds that Applicant's F M contain no "material" information or witness statements, and they would not have been admissible at trial.

7. The Court finds that Applicant's exhibit E was a teletype prepared by an employee of the Dallas FBI office who may or may not have had any personal knowledge of this investigation, summarizing the then-current state of the investigation for other FBI offices. The Court further finds that the document contains no witness statements, its maker is unidentified, and it would not have been admissible for any purpose at trial. (See State's Ex. B).

8. Accordingly, the Court concludes that Applicant has failed to prove that these documents (exhibits E, F, M) were in the possession or control of the State or that they were material, and the Court therefore concludes that the State committed no violation by failing to produce them.

9. The Court finds that Applicant's Exhibits C, H, J, and K were tendered for defense counsel's examination in compliance with Tex. Code Crim. Evid. 612 (the "Gaskin Rule") after those witnesses were called to testify by the State and testified on direct examination. (State's Exhibit A). The Court further finds that Mr. Hagood also specifically advised defense counsel on the record at the pre-trial hearing that Officer Edmunds had heard Shipley and Blum, the subjects of Applicant's Exhibits C and H, describe Applicant as looking "very high."

11. The Court finds that Applicant's Exhibit G is a report of FBI agent Cutcomb relating to Applicant's arrest, and although the State did not call Agent Cutcomb to testify, Mr. Hagood identified Cutcomb to the defense as a potentially favorable witness and described to the defense at pre-trial Agent Cutcomb's recollections about Applicant's demeanor when he was arrested.

12. The Court finds that the number of shots fired at the time of Applicant's arrest and their origins, a subject addressed in Applicant's Exhibit G, is neither material to the capital murder of Mark Frazier nor to Applicant's guilt of attempted capital murder and his armed resistance to arrest at the Park Cities Inn because: 1) Applicant pled guilty, confessed, and was convicted of these attempted capital murders which were properly admitted before the jury in this trial; 2) Applicant has failed to direct this Court to any evidence that demonstrates any inconsistencies in testimony of physical evidence that were not already well known to all parties and hotly debated prior to this trial; and 3) regardless of the direction of the bullets fired by Applicant, he was guilty of the attempted capital murder under the theory of transferred intent regardless of whose bullets actually narrowly missed the officers.

13. Accordingly, the Court concludes that, with regards to Applicant's Exhibits . . . C, G, H, J, and K, the State either provided the typewritten reports to the defense when the witnesses testified for the State or the State provided all material potentially exculpatory and/or impeachment evidence contained in these exhibits to defense counsel prior to trial. Accordingly, the Court concludes that Applicant has failed to prove that the State committed any error under Brady [v. Maryland, 373 U.S. 83 (1963)] with respect to these documents.

14. The Court finds that the State did not tender any of the handwritten versions of agents notes contained in the complained-of documents (Applicant's Exhibits . . . C, H, I, J, K) because the State never had possession of the handwritten versions and in fact did not know of their existence. The Court further finds that the FBI, a federal agency not under the control of the state prosecuting authority, did not consider these handwritten notes to be a formal part of their investigative file and would not have tendered them to a state agency such as the Dallas District Attorney's office absent a specific request. (See State's exhibits A and B).

15. The Court finds that Applicant has not demonstrated any material, admissible inconsistencies between the handwritten notes and the typewritten versions that were provided to the defense.

16. The Court finds that the State never tendered Applicant's Exhibit D because the State did not have possession of these notes and did not know of their existence. (State's Exhibit A). Moreover, the Court finds that because the document is not a written statement of the witness, Jo Brown, it could not have been used to impeach her testimony. Furthermore, the Court finds that Applicant's Exhibit D is not inconsistent with Jo Brown's trial testimony in the first trial or this retrial, but is instead merely a shorthand rendition of part of Ms. Brown's testimony, including her statements before both juries that Applicant was looking about wildly, ranted and raved, and shot Mark Frazier.

17. The Court finds that the State did not tender Applicant's Exhibit I, an FBI report describing statements of Kathy Knoebber Crouse, because she was not called to testify as a State's witness at the retrial and instead was called by the defense. The Court further finds that this report would not have impeached Ms. Knoebber Crouse's account of the shooting not only because it is not the actual statement of Ms. Knoebber Crouse but because this report contains no material inconsistency from Ms. Crouse's testimony at the first trial.

18. The Court finds that Applicant's Exhibit L is the report of FBI Agent Tommy Kilmer, who was in the lobby or stairwell of the hotel when the big gunfight happened, not a report by Agent: John Meadors as Applicant claims, and therefore was not provided to defense counsel pursuant to Rule 612 as Kilmer did not testify at trial. The Court further finds that Kilmer's perception could not have been admitted as a prior inconsistent statement against Meadors, but at any rate the report is not inconsistent with Meadors' testimony, since it only says that Kilmer heard "several shots fired, sounding like two muffled shots from a handgun" whereas Meadors testified that he heard "three" shots.

19. Accordingly, the Court concludes that Applicant has failed to prove that the handwritten notes were in the possession or control of the State or that they were material, and the Court concludes that Applicant has failed to prove that Exhibits I L. were admissible for any purpose, or that anything in them was material to the case. Thus, the Court concludes that the State committed no violation by failing to produce the handwritten notes or Exhibits I L.

21. The Court finds that most of the information about witnesses that Applicant claims was denied to him does not concern the offense for which Applicant was an trial and was not material to prove or disprove the extraneous acts in question.

22. The Court concludes that the only issue that Applicant raises that relates directly to the capital murder for which he is on trial is the issue of whether he was intoxicated at the time of the offense, and this issue is not legally material to his guilt because although Applicant convinced the trial court at his trial to give a voluntary intoxication defensive instruction at guilt-innocence, his voluntary intoxication was in fact not a defense to his guilt under the law at the time of trial and today.

23. The Court concludes that the court's charge did not raise the State's burden of proof in this case when assessing sufficiency of the evidence or, as here, when assessing materiality of evidence to prove the elements of the charged offense.

24. The Court therefore concludes as a matter of law that Applicant has failed to carry his burden to prove that the various documents of which he complains were improperly withheld, that they were admissible, or that they were material to his defense. Accordingly, the Court concludes that Applicant has not proven that the State committed any Brady error, and Applicant's first ground for relief is without merit.

S.H. Tr. at 307-14 (citations other than to exhibits omitted).

With respect to the suppression of documents, Judge Bradshaw also adopted the following findings of fact and conclusions of law related to the supplement to the state writ:

In his first and second grounds for relief, Applicant [(Morrow)] alleges that the State suppressed a police report that would have impeached witnesses' testimony regarding the manner in which the shooting occurred and the manner in which Applicant left the scene of the murder. Specifically, Applicant alleges that this police report would have impeached Jo Brown's testimony that she saw the shooting and would have impeached Jan Noble's testimony that Applicant was laughing and smiling after he shot Mark Frazier.

2. The Court finds that on January 21, 1999, this Court issued an order granting Applicant's Brady motion . . . .

3. The Court finds that, due to prior correspondence to this Court from Applicant's writ counsel regarding alleged suppressed evidence, the State tendered to this Court a supplemental Dallas Police Department report authored by Corporal Leslie Myers on the same day this Court entered the Brady order. The Court finds that Applicant had already tendered this document to this Court for an in camera inspection.

4. The Court finds the "exculpatory" report Applicant alleges that the State suppressed is a supplemental report filed by Corporal Leslie Myers of the Dallas Police Department. (Applicant's Exhibit T; State's Appendices A B).

5. The Court finds that Corporal Myers is a patrol officer who responded to a call on January 19, 1982, from First Texas Savings, the location where Applicant shot and killed Mark Frazier. (State's Appendix B).

6. The Court finds that Corporal Myers testified at Applicant's 1990 capital murder trial and that the record reflects that after his direct examination, a four-page report authored by Myers was tendered to defense counsel. (R. 84:248).

7. The Court further finds that defense trial counsel, Keith Jagmin, questioned Corporal Myers at trial regarding this report. Specifically, the Court finds that Jagmin questioned Myers about the fact that, according to his report, Tammy Roy told Myers that she had witnessed the shooting. (R. 84:251-52).

8. The Court therefore finds that, contrary to Mr. Jagmin's affidavit submitted by Applicant in support of his supplemental application, the record from Morrow's trial reflects that Jagmin not only received from the State a four page report authored by Myers after Myers testified, but specifically questioned Myers about statements included in this supplemental report that Applicant alleges that the State suppressed at trial.

9. The Court therefore concludes that Applicant has failed to prove by a preponderance of the evidence that: Keith Jagmin was not tendered this supplemental report at trial or another report authored by Myers that contained the same information.

10. The Court finds that Corporal Myers has submitted an affidavit about his involvement in this case and his recollection of events that occurred on January 19, 1982. The Court has examined and finds credible Corporal Myers' affidavit. (State's Appendix B).

11. The Court finds that, although Corporal Myers participated in the initial investigation of the offense and the identification of witnesses at the scene that day, he was not involved in any of the subsequent investigation of the crime, and he did not take any formal statements from the witnesses. (State's Appendix B).

12. The Court finds that the purpose of this supplemental report, at the request of the Crimes Against Persons division of the Dallas Police Department, was to state the names of the witnesses at the scene Myers had spoken to and their respective locations at the time of the murder. (State's Appendix B).

13. The Court finds that this was a brief supplement filed to identify witnesses at the scene who would need to be interviewed by detectives and that it was not intended to — and did not — set out the entirety of those witnesses' statements or observations and did not constitute "statements" of any of those witnesses as defined in Rule 615 of the Texas Rules of Evidence. See TEX. R. EVID. 615(f).

15. The Court finds that the phrase "she was able to look out on Berkshire," contained in this supplemental report, was not intended by Corporal Myers to imply that Witness Jan Noble was inside the building — or at any particular location — when she saw Applicant leaving the scene of the offense. (Defendant's Exhibit T; State's Appendix B). The Court further finds that neither the report nor any other evidence before this Court suggests that Jan Noble told Myers that she was upstairs when she saw Applicant in the parking lot outside First Texas Savings. (State's Appendix B).

16. The Court therefore finds that the supplemental report does not contradict Jan Noble's trial testimony that she was outside of the office building when she saw Applicant leave the scene. (R. 84:259-261).

17. The Court finds that the supplemental report states that Witness Jo Brown saw Applicant when he entered the bank and approached the teller's window accompanied by Mark Frazier, but it does not address whether Ms. Brown saw the shooting and was not intended as a summary of any statement by Ms. Brown (Defendant's Exhibit T).

18. The Court therefore finds that the supplemental report does not contradict Jo Brown's testimony that she saw Applicant shoot Mark Frazier.

19. The Court finds that Jagmin questioned Myers about the fact that, according to his report, Tammy Roy told Myers that she had witnessed the shooting. (R. 84:251-52). The Court further finds that in his closing statement after the guilt/innocence portion of the trial, Jagmin pointed out that there had been some conflicting evidence regarding whether Ms. Roy witnessed the shooting, but that Ms. Roy testified that she did not see Applicant move before he shot Mark Frazier. (R. 90:1675-6).

20. Therefore, the Court finds that the defense was aware at the time of Applicant's trial of any possible discrepancy between Myers' report and Tammy Roy's testimony, and trial counsel had the opportunity to explore any difference in wording both in his cross-examination of Myers and in his argument at trial.

22. The Court concludes that the supplemental report that Applicant's counsel claims the State suppressed in violation of Brady v. Maryland contains no exculpatory evidence, would not be admissible to impeach any of the eyewitnesses to the murder of Mark Frazier or to Applicant's flight from the scene, and does not lead to discovery of any exculpatory evidence.

23. The Court therefore concludes as a matter of law that Applicant has failed to carry his burden to prove that the document of which he complains was improperly withheld, that it was admissible, or that it was material to his defense. See United States v. Bagley, 473 U.S. [667, 676 (1985)].

24. Accordingly, the Court concludes that Applicant has not proven that the State committed any Brady violation, and the Applicant's allegations contained in his first and second grounds for relief are without merit.

Supp. S.H. Tr. at 7-12.

2. AEDPA Standards Applicable to State-court's Brady Determination

To summarize, the state habeas court concluded that Morrow's suppression-of-evidence claim lacked merit. S.H. Tr. at 314; Supp. S.H. Tr. at 12. More to the point, the state court's rejection of Morrow's suppression of evidence was based on its determination that the documents at issue had either been tendered to Morrow and/or that the documents were not material to his defense.

The Supreme Court provided the applicable standard for reviewing claims involving the suppression of evidence in Brady v. Maryland, 373 U.S. 83 (1963). Alleged violations of the Brady standard are reviewed under 28 U.S.C. § 2254(d)(1), which precludes relief unless the state court's determination was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. See Trevino v. Johnson, 168 F.3d 173, 184 (5th Cir. 1999) (holding that "[w]hether documents must be produced and whether they are material under Brady is a mixed question of law and fact"). Background fact findings made in the course of determining the Brady issue are, nevertheless, subject to the presumption of correctness of § 2254(e)(1) and under the AEDPA may be rebutted by clear and convincing proof. See Lucas v. Johnson, 132 F.3d 1069, 1082 (5th Cir. 1998) (presuming correct factual findings in the context of an alleged Brady violation). For the reasons discussed below, the state-court's disposition of Morrow's habeas petition and supplement thereto on the suppression-of-evidence claims appears consistent with the applicable precedent of the Supreme Court found in Brady.

In Brady, the Supreme Court held that a prosecutor must disclose evidence to a criminal defendant if that evidence is favorable to the defendant and material to his guilt or punishment. 373 U.S. at 87. The Brady disclosure requirement applies to impeachment evidence as well as other exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676 (1985). "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82(1999).

Upon review of each of the challenged documents, this Court finds, as discussed in detail below, that Morrow's Brady claims fail, because none of the allegedly withheld documents were material to his defense.¹⁶ Unless the documents are material to the guilt or punishment of Morrow, there can be no Brady violation. United States v. Lowder, 148 F.3d 548, 550 (5th Cir. 1998). Unless the suppression of the documents prejudiced Morrow, there is no Brady violation. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). The Supreme Court has instructed that "evidence is `material' under Brady . . . only where there exists a `reasonable probability that had the evidence been disclosed the result at trial would have been different." See Wood v. Bartholomew, 516 U.S. 1, 5 (1995).

16 In this case the materiality issue is complicated by the fact that the trial court charged the jury as follows:

The term "intoxication" means disturbance of mental or physical capacity resulting from the introduction of any substance into the body.

The term "temporary insanity" as it relates to intoxication means that, as a result of the introduction of any substance into the body, the actor did not know that his conduct was wrong.

The term "voluntary" as it relates to intoxication means that the actor introduced intoxicants into his body of his own free will.

You are instructed that, in your deliberations, you should look at all the evidence adduced in the case, including that relating to voluntary intoxication, if any, in connection with the defendant's ability to form the requisite criminal intent of having the conscious objective or desire to cause the death of Mark A. Frazier, if he did.

Now therefore, if you find and believe from the evidence that, at the time of the killing, if any, of Mark A. Frazier by the defendant, if he did so kill Mark A. Frazier, the defendant was voluntarily intoxicated to the degree of temporary insanity, as those terms are defined above, and that the defendant was incapable of forming the specific intent to cause the death of Mark A. Frazier, if he did, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of capital murder and consider whether he is guilty only of the offense of murder.

You are instructed that in your deliberations, you should look at all the evidence adduced in the c:, se, including that relating to voluntary intoxication, if any, in connection with the defendant's ability to form the requisite criminal intent of having the conscious objective or desire to do an act clearly dangerous to human life, if he did.

Now therefore, if you find and believe from the evidence that, at the time of the killing, if any, of Mark A. Frazier by the defendant, if he did so kill Mark A. Frazier, the defendant was intoxicated to the degree of temporary insanity, as those terms are defined above, and that the defendant was incapable of forming the requisite intent to commit an act clearly dangerous to human life, if he did, or if you have a reasonable doubt thereof, you will acquit the defendant of murder and say by your verdict not guilty.

T. Tr. at 699-700. Such charge was contrary to law of the State of Texas at the time of Morrow's offenses and trials and still is today. See TEX. PENAL CODE ANN. § 8.04 (1994) (historical and statutory note indicates that the only amendment of statute occurred in 1993 and "made no apparent change"); Hawkins v. State, 605 S.W.2d 586, 589 (Tex.Crim.App. 1980). Section 8.04 provides:

(a) Voluntary intoxication does not constitute a defense to the commission of crime.

(b) Evidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried.

(c) When temporary insanity is relied upon as a defense and the evidence tends to show that such insanity was caused by intoxication, the court shall charge the jury in accordance with the provisions of this section.

(d) For purposes of this section "intoxication" means disturbance of mental or physical capacity resulting from the introduction of any substance into the body.

Statutory prohibitions relating to the consideration of voluntary intoxication as a defense to a specific intent crime, furthermore, piss constitutional muster. Montana v. Egelhoff, 518 U.S. 37, 51-56 (1996). Section 8.04 is constitutional. Goodwin v. Johnson, 132 F.3d 162, 191 (5th Cir. 1997).
Then is no clear authority for determining materiality of documents pertinent only to an unavailable defense that was, nevertheless, charged to the jury as is the case here. In any event, as discussed, none of the allegedly suppressed documents (Habeas Exs. C, D, E, F, G, I, J, K, L, M, N, O, and T) create a reasonable probability or significant possibility that the outcome of the trial or punishment would have been different. Under the facts of this case, including the erroneous jury charge, the alleged suppression does not "`undermine our confidence' that the factfinder would have reached the same result." See Strickler, 527 U.S. at 300-01 (Souter, J., concurring).

The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial."

Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). In other words, there must be "a `significant possibility' of a different result to characterize the Brady materiality standard." Strickler, 527 U.S. at 300 (Souter, J., concurring). In any event the touchstone inquiry remains "whether the evidentiary suppression `undermines our confidence' that the factfinder would have reached the same result." Id . at 300-01 (Souter, J., concurring).¹⁷

17 In these findings and recommendation, this Court will generally express the Brady standard in terms of reasonable probability or significant possibility, but will, at times, also speak in terms of undermining confidence.

Morrow's Brady argument boils down to his contention that the State withheld documents that were material to his defensive theory that he did not intentionally kill Frazier. Specifically, he argues that documents relating to whether he was intoxicated, whether he accidentally fired his gun at Frazier, whether he was jovial or carefree after the shooting, and whether he intentionally shot at the officers at the Inn, all bear upon the critical issue of whether he intentionally killed Frazier. Morrow contends that Habeas Exhibits C, D, E, F, and G are material to whether he was high on drugs or alcohol at the time he shot Mark Frazier at First Texas. He contends that Habeas Exhibits D, E, I, J, and T are material to impeach witnesses regarding the manner in which he shot Frazier and the manner in which he left First Texas. He contends that Habeas Exhibits K and T are material to the testimony of Jan Noble regarding his demeanor when he left the parking lot of First Texas. He further contends that Habeas Exhibits E, F, G, L, M, N, and O are material to determining exactly what happened at the Park Cities Inn.

a. Level of Intoxication

Morrow contends that the State suppressed three FBI reports (Habeas Exs. C, D, and G), an FBI teletype (Habeas Ex. E), and an FBI memorandum (Habeas Ex. F) that are material to whether he was high on drugs or alcohol at the time he shot Mark Frazier at First Texas. The first report (Habeas Ex. C) relates to witness Jean Blum's observations. In that report, Agent Borrero indicates that Ms. Blum told him that Morrow had "somewhat bloodshot" eyes and that he "[a]ppeared to be on drugs or intoxicated, and had a wild look in his eyes; a very excited person." S.H. Tr. at 247. Habeas Exhibit D relates to witness Jo Brown's observations. It has the following notations without further explanation: "high", "shouted obscenities", and "ranted raved." Id. at 100. Habeas Exhibit G reflects that Special Agent Cutcomb of the FBI noted that Morrow "spoke in a manner such that his words were slightly slurred" when Morrow was arrested at the inn. Id. at 249. Agent Cutcomb also observed that Morrow "widened his eyes while speaking." Id. The FBI teletype (Habeas Exhibit E) reflects that unidentified witnesses at Metropolitan believed Morrow to be high on either drugs or alcohol. Id . at 102. The FBI memorandum (Habeas Exhibit F) reflects that unidentified "[w]itnesses at both bank robberies advised that [Morrow] was apparently high on drugs or alcohol at the time of instant bank robbery." Id . at 115.

Morrow contends that the suppressed documents "establish" that he was intoxicated on alcohol or drugs when he shot Frazier. (Pet. at 11.) He contends "he could have impeached Blum's testimony that he was `high' only on adrenaline, and that she had never told any officer that he was `high' on drugs." (Id. at 12.) He argues that, if he could impeach the witnesses, he could have persuasively argued that he was only guilty of felony murder under the charge given to the jury. (Id.)

For reasons that will become apparent after the Court sets forth the evidence relating to Morrow's level of intoxication, Habeas Exhibits C, D, E, F, and G are not material to this case within the meaning of Brady and its progeny. Their alleged suppression does not undermine confidence in the trial outcome or the punishment meted out. The Court is confident that the jury would have reached the same result had they considered the exhibits related to the intoxication issue.

As detailed below, both Morrow and the State elicited extensive trial testimony relating to the intoxication issue, some of which supported Morrow's position that he was intoxicated to such an extent that he could be acquitted of capital murder under the charge given to the jury and some of which refuted his position.

Morrow testified at trial that he used drugs on the day of the offense and was "very intoxicated," although not to the point of "staggering or stumbling." SF-87 at 1029; SF-88 at 1150, 1169. He testified that he drank alcohol everyday. SF-87 at 1032. He testified that he was extremely paranoid." Id . at 1041. He testified that he was depressed. Id . at 1042. He testified that he had been prescribed Loxitane and Tranxene and had taken five or six of the latter drug and an unspecified amount of the former drug on the date in question. Id . at 1046, 1058. He testified that he was "accustomed to drinking a pretty large amount of alcohol." Id. at 1060. He also admitted that he knew "right from wrong" on the day of the robberies. SF-89 at 1432. He, nevertheless, stated that he believed his intoxication "had a whole lot to do with" his inability to conform to the rule of law on January 19, 1982. Id . at 1433.

Morrow testified that before he went to the laundromat on January 19, 1982, he had used cocaine and injected heroin.¹⁸ SF-87 at 1057. He testified that, after leaving Ferguson at the laundromat, he bought a half pint of vodka, before proceeding to a pawnshop to purchase a radio. Id . at 1057-59. He testified that he was neither "completely sober" nor "drunk" when he went to the pawnshop. SF-89 at 1430. He testified that he had finished a quarter pint of vodka before he first entered the pawnshop. Id .

18 A medical record date January 20, 1982, indicates that Morrow denied heroin use for the previous ten to twelve years. SF-88 at 1153-54. He testified, however, that the denied such use, because the inquirers were "State doctors." Id . at 1155; SF-89 at 1398.99.

Morrow testified that he returned to the laundromat after his radio purchase. SF-87 at 1059. He testified that he "was well on the way to being intoxicated" when he arrived back at the laundromat. Id . at 1060. Per his testimony, he consumed the last of the half pint of vodka upon his return to the laundromat. Id . at 1058. He testified that he vomited in the laundromat's parking lot as he and Ferguson were about to return to the pawnshop. Id . at 1060. According to his testimony, he suffered from paranoia and severe depression as they returned to the pawnshop. Id . at 1061. He testified that, when he returned to the pawnshop, he was intoxicated enough to confuse Ferguson with his sister. SF-89 at 1431.

Morrow testified that he purchased a fifth of vodka between leaving the pawnshop for the second time and purchasing ammunition. SF-87 at 1066. He testified that he began drinking the fifth as he was driving. Id . He testified that, when he went into Metropolitan, he "started screaming and cursing and hollering and directing profanities at everyone in the bank and demanding the money." Id . at 1070. He testified that he mentioned "Bait money" as he had heard of such thing while in prison. Id . at 1071-72. He testified that he had some difficulty opening the door to leave. Id . at 1072-73. He testified that the money sack ripped and his gun discharged as he proceeded from Metropolitan. Id . at 1075. He believed he retrieved "most of the money" that had dropped from the sack. Id .

On cross-examination, Morrow testified that, at the time he robbed Metropolitan, he knew he was robbing a bank and meant to rob the bank. SF-88 at 1177-78. He testified that he purposefully put a sack in his boot, armed himself with two handguns, and went into the bank to rob it. Id . at 1178. He testified that he "knew exactly" where he was and what he was doing. SF-89 at 1428. He testified that, although he knew right from wrong, he did not think he was in control of himself due to the intoxicants in his body. Id . He testified that he knew his conduct "was wrong." Id.

Morrow testified that when he entered First Texas he started "ranting and raving, screaming and cursing, [and] directing profanities at everyone." SF-87 at 1077. He testified that he acted that way until "a shot was fired." Id . at 1078. He testified that he was "drunk" when the shooting happened. SF-89 at 1404. He, nevertheless, testified that he knew his "conduct was wrong inside First Texas." Id . at 1429. He again stated that he did not believe he could control himself "from doing the wrong things that [he] did that day." Id .

Morrow testified that he was drunk, crying, and upset, when he and Ferguson "went up to their room" at the inn. SF-87 at 1093. He further testified that Ferguson made him a drink at the inn "that about finished off the fifth of vodka." Id . He testified that he was "intoxicated" when he was at the police station after his arrest. SF-88 at 1172.

Ferguson testified at trial that Morrow was an alcohol and drug abuser. SF-86 at 758-59, 804. She testified that Morrow used Loxitane, cocaine, and heroin and drank a fifth of vodka on the date of the robberies. Id . at 764-65, 808. She testified that Morrow was drunk on that date and corroborated that, at one point, he vomited in the parking lot of the laundromat, after returning from his first visit, to the pawnshop. Id . at 767. She testified that he remained in that condition when they returned to the pawnshop, but he was also "losing touch with reality a little more." Id . She testified that "[h]e wasn't walking real straight." Id . at 818. She testified that he staggered "a little bit." Id . She testified that he confused her with his sister Lori.¹⁹ Id. at 767-68, 819. She testified that Morrow's intoxication "was obvious" to her. Id . at 819. She testified that he was intoxicated and became more and more paranoid after the second visit to the pawnshop. Id . at 773. She testified that she did not think he knew right from wrong. Id . at 827.

19 The transcript spells the sister's name as "Lorie" and "Lori". Compare SF.86 at 767-68, 819 (Lorie) with SF-89 at 1431 (Lori). The Court will usc the more common spelling, "Lori", as it is uncertain which spelling is correct.

Ferguson testified that when Morrow left Metropolitan he was "not real well coordinated" and that he dropped a gun and some money. SF-86 at 776. She testified that they left Metropolitan and drove randomly until Morrow saw First Texas and he again directed that she pull over. Id . at 777. She testified that he was "[e]xtremely intoxicated" at that point. Id. She testified that "[h]e wasn't walking real straight . . . he was still intoxicated . . . he stagger[ed] and stumble[d] a little bit." Id . at 864-65. She testified that she believed that he did not know right from wrong when he entered First Texas. Id . at 897. She testified that when he returned to the car from First Texas he was hysterically crying and staggering "a little bit." Id . at 779-81, 872.

Lanny Gouge (Gouge), the pawnbroker who sold Morrow the two guns used in the robberies, testified that Morrow appeared "[r]egular, normal" and was not "vomiting or drunk or staggering or anything like that." SF-83 at 26-27. He testified that he "saw no evidence" that Morrow was intoxicated during the second visit to his pawnshop. Id . at 28. According to Gouge, Morrow "was again normal" in both mood and condition on the second visit. Id . Gouge testified that Morrow seemed "oriented and kn[ew] where he was and what he was doing." Id . at 29.

Officer K.C. Edmonds interviewed witnesses Joena Bailey Shipley, Jean Cullum Blum, W.L. Miller, and Carol Fritchie at Metropolitan after the robbery in question. SF-84 at 372-73. He testified that Shipley told him that she thought Morrow might have been very high on drugs. Id . at 373, 381, 412. He testified that she told him that Morrow "was waving guns around, threatening to blow people's fucking heads off, irate, wild." Id . at 381. He also testified that Blum "said she thought he appeared to be high," although she did not specify or elaborate as to the cause of such state of mind. Id . at 381-82, 412-13. He further testified that he did not believe Fritchie said anything about Morrow being high. Id . at 382. He testified that Miller did not mention Morrow being high. Id . at 382-83.

Officer John Norton testified that he responded to the robbery at Metropolitan and interviewed some witnesses. SF-85 at 524-25. He testified that he indicated in his report that Morrow "appeared to be high on dope." Id . at 525, 530-31. He could not recall who told him that. Id . He testified that a notation in his report relating to Morrow's irrational behavior was his own conclusion based upon interviews of the witnesses and their description of Morrow as "verbally abusive, vulgar, [and] demanding." Id . at 525-26. He testified that he was not indicating that Morrow did not "know where he was," did not know "what he was doing," or was not "responsible for his actions." Id . at 546.

Witness Joena Bailey Shipley testified that Morrow was not "waving" the guns around while robbing Metropolitan. SF-83 at 61. She testified that he did not seem "drunk or disoriented or in any way out of his senses." Id . She thought "he was in complete control of his senses." Id . at 61-62. She testified that he responded appropriately to an inquiry regarding whether he wanted coins. Id . at 62. She did not believe him to be drunk. Id . She testified that his eyes "were piercing and he just looked mad and angry and mean." Id . at 65. She did not think "he acted like he was drunk at all." Id . at 69. She stated that he "repeatedly said he would blow [their] heads off." Id . at 70.

When the defense called Shipley to further examine Morrow's mental state, she testified that she did not remember telling Officer Edmonds that Morrow was very high. SF-85 at 675. She explained that she "could have said that he could have been." Id . She explained that she did not believe she said he was high, because she did not know how he would have been acting had he taken drugs. Id . She also testified, that even if Morrow was on drugs, he knew where he was, what he was doing, and what it was all about. Id . at 678.

Witness Jean Cullum Blum testified that Morrow did not "slur his speech or roll his head around or seem like he was not in control of himself" while robbing Metropolitan. SF-83 at 95. She testified that he "seem[ed] like he knew where he was and what he was doing." Id . She testified that he understood what she was saying where she told him she had no sack in which to place the money. Id . She gave the following answers to the following questions:

Q. All right. Did he [(Morrow)] seem to you to be high on anything? Did he appear to be high?

A. He just seemed really high like on adrenalin. He was pumped up, just excited with the thrill of what was going on.

Q. Did you ever tell an officer he might have seemed high on drugs or dope or anything like that? Do you recall that?

A. No, I don't.

Q. Might you have said that?

A. I don't remember saying that.

Q. All right.

A. I don't know.

Q. Okay. At any rate, did you ever feel he wasn't in complete control of his senses or in any way impaired to the point he didn't know where he was or what he was doing?

A. No, I did not. I was close enough to him and I do remember telling an officer that he did not smell of alcohol.

Q. You got close enough where you didn't smell any alcohol?

A. Yes, I didn't smell any.

Id . at 96-97.

On cross-examination, Blum testified that she had never reported to Officer Norton that Morrow appeared to be high on dope. SF-83 at 103. When the defense called her to further examine Morrow's mental state, she stated that, although she had told Officer Edmonds that Morrow "was very high," she did not mean high on drugs or alcohol, but rather high as in excited. SF-85 at 684. She testified that she was one hundred percent sure that Morrow knew "full well where he was and what he was doing." Id . at 692.

Witness Louis Wong testified at :rial that he saw a man carrying a bag with coins falling out run ten to fifteen yards to a car from Metropolitan. SF-83 at 79-87. He testified that the man did not appear disoriented. Id . at 86.

Witness Bo Holmes also witnessed a man leaving the scene after the Metropolitan robbery. Id . at 120. She testified that she saw money coming out of a sack and stopped to help the man pick it up. Id . at 116-17. The man ran away. Id . at 117. She testified that the man had no physical difficulty picking up the coins from the ground. Id . at 125.

Witness Kathy Knoebber Crouse testified that she was on the telephone when Morrow first entered First Texas, that she heard Frazier ask if he could assist Morrow, and then Morrow said "Give me all of your goddamned money." SF-86 at 716 . She testified that he was "very angry . . . very nervous and acting very agitated." Id . at 717. She recalled testifying previously that he "was very hyper, very angry, very nervous, [and] acting real jumpy." Id . She testified that she felt that Morrow knew what he was doing, where he was, and was in complete control of his senses. Id . at 743-44.

Witness Jo Brown testified that she saw Morrow as soon as he entered First Texas. SF-83 at 168. When he entered the bank, "his movements were jerky, he was looking about wildly, his demeanor was one of ranting and raving" according to her testimony. Id . at 188. She testified that Morrow did not appear "disoriented or confused as to where he was or what he was doing." Id . at 172. She testified that Morrow held the guns steadily. Id . at 176. According to her testimony, his "jerky" movements subsided when he reached the teller counter. Id . at 199. She explained what she meant by "jerky": "Looking to see where we were — where everybody was in the office . . . ." Id .

Witness Nancy Galloway testified that Morrow held his gun "steadily." Id . at 141. She testified that Morrow looked "like he knew what he was doing and where he was." Id . at 145. She stated his eyes were "very cold and calculated." Id .

Witness Tammy Roy testified that Morrow "looked around when he was coming toward" her counter, but stopped doing that once he got there. Id . at 214. She testified that he held the guns steadily. Id . She testified that Morrow seemed "to be in complete control of the situation." Id . at 215.

Detective Hallam of the Dallas Police Department was present when the law enforcement officers apprehended Morrow and testified that he did not "at any time feel that [Morrow] was disoriented, didn't know where he was, what he was doing, who [the law enforcement officers] were, what was going on, or anything like that." SF-84 at 426.

Jack Baird, Hallam's partner, testified that Morrow "appeared to be high" when he was arrested. Id . at 448, 451. He reached that conclusion, because Morrow "was very hyper and he had a wild look about his face." Id . at 451-52. He testified that he "didn't think [Morrow] was drunk, " but rather "either on drugs or on an adrenalin high or something of that nature." Id . at 448-49. He testified that Morrow "could have been on a murder high." Id . at 465. He also testified, however, that Morrow appeared oriented, knew where he was, and responded appropriately. Id . at 449. He testified that Morrow "was cognizant of what was happening" and "knew the difference between right and wrong." Id . at 453.

Witness Sherry Baker, a clerk-receptionist at Park Cities Inn on the date of the robberies, testified that she saw Morrow proceed to the room and that he was "walking normal" at that time — he was not staggering, stumbling, falling down, jerky, or "anything like that." SF-84 at 299. She also testified that she found vodka in Room 311 after Morrow's arrest. Id . at 298-99.

James Clark Garriott, a forensic toxicologist, testified at trial for the defense. SF-87 at 948-1004. He testified that drinking a fifth of vodka and taking unspecified quantities of heroin, cocaine, Loxitane, and Tranxene would "have an effect upon a person's ability to think and a person's ability to act." Id . at 954-56. He estimated that the blood alcohol level of such a person would be 0.4 to 0.41 percent assuming the vodka was consumed in a six to six and a half hour period. Id . at 957. He testified that such an alcohol level would impair cognitive thinking. Id . at 962, 967. It would impair the ability to formulate an intent to kill. Id . at 962-63. It would impair coordination and motor ability. Id . at 963, 967 . He testified that such a person would be "obviously intoxicated" and "show signs of clumsiness." Id . at 975. He further testified that such a person's ability to walk and run, would be impaired. Id . at 979. He also testified that "[y]ou would expect [such a] person to have slurred speech." Id . Such a person's ability to listen and understand conversation, to engage in coherent conversation, to deceive a sober person, to drive a motor vehicle, to plan a criminal offense, to make preparations for a criminal offense, to consider bait money or alarms, and to pick up money from the ground would be impaired. Id . at 979-81. Nevertheless, such a person would be capable of wanting to kill. Id . at 981. He also testified, however, that "[t]here is a tremendous degree of difference in the tolerance of different individuals." Id . at 996.

In view of the foregoing abundant testimony supporting and refuting Morrow's position on his level of intoxication, the Court finds that the allegedly withheld documents to be merely cumulative to the intoxication issue and, thus, not material within the meaning of Brady and its progeny. The documents do not establish that Morrow was intoxicated on alcohol or drugs when he shot Frazier. More importantly, they do not create a reasonable probability that Morrow was intoxicated to the point of being temporarily insane during the murder of Frazier. Under the charge given to them, the jury could acquit Morrow of capital murder due to temporary insanity caused by voluntary intoxication only if they found that he "did not know that his conduct was wrong." See T. Tr. at 699-700. Morrow himself testified, furthermore, that he knew right from wrong on January 19, 1982, despite his alleged intoxication. SF-89 at 1428-32. Detective Baird also testified that Morrow "knew the difference between right and wrong" when he was arrested at Park Cities Inn. SF-84 at 453.

While Borrero's report (Habeas Ex. C) has some limited impeachment value against Blum, as it indicates that she told Agent Borrero that Morrow "[a]ppeared to be on drugs or intoxicated," S.H. Tr. at 247, it appears insufficient to raise a reasonable probability that the outcome of the trial would be different had Morrow been able to use the document at trial. In fact, the report appears insufficient to affect the jury's credibility finding as to her testimony. She testified that she did not remember telling any officer that Morrow might have been high on drugs. She did not, however, specifically deny that she might have said it. The report, furthermore, does not directly impeach the explanation as to what she meant when she told Officer Edmonds that Morrow "was very high." A person can be "high" as in excited, as well as being "high" as the result of drugs or alcohol.

Although the second report (Haleas Ex. D) likewise has some relationship to Morrow's level of intoxication, as it suggests that Jo Brown told an unidentified agent that Morrow was "high," S.H. Tr. at 100, it also appears insufficient to raise a reasonable probability that the outcome of the trial would have been different had Morrow been able to use the document at trial. Brown specifically testified that Morrow did not appear disoriented or confused as to where he was or what he was doing. SF-83 at 172. In light of all the other evidence regarding intoxication, whether she told an unidentified agent that Morrow was high appears immaterial to the outcome of the trial, the credibility of the witness, or the sentence imposed.

The third report (Habeas Ex. G) reflects that Special Agent Cutcomb noted that Morrow "spoke in a manner such that his words were slightly slurred" when he was arrested following the shooting of Mark Frazier. S.H. Tr. at 249. Agent Cutcomb also "observed that [Morrow] widened his eyes while speaking." Id. The Court sees no impeachment value to this document. Had defendant called Agent Cutcomb to testify, furthermore, his likely testimony, as reflected in his report, appears insufficient to raise a reasonable probability that the outcome of the trial or the punishment imposed would have been different. Detective Baird had already testified that he thought Morrow was high at the time of his arrest. SF-84 at 448, 451. As reflected in the lengthy recitation of the testimony relating to Morrow's level of intoxication, the record is replete with references to Morrow being high or intoxicated. Adding that Morrow's words were slightly slurred or that he widened his eyes while speaking adds little to the equation. Such testimony had it been presented at trial does not address the central issue, namely whether Morrow was so intoxicated as to be rendered temporarily insane and thus did not know right from wrong.

The Court finds Habeas Exhibit G immaterial to the intoxication issue within the meaning of Brady and its progeny. Its suppression does not undermine the Court's confidence that the jury would have reached the same result had they been privy to its contents. Using it at trial or placing its contents into evidence through testimony would not have raised a reasonable probability that the outcome of the trial would have been different. It would not have raised a reasonable probability that the punishment imposed would have been less harsh.

The FBI teletype (Habeas Ex. E) reflects that unidentified witnesses at Metropolitan believed Morrow to be high on either drugs or alcohol. S.H. Tr. at 102. The Court finds the teletype duplicative of other evidence of record. Specifically, Officer Edmonds testified that Ms. Shipley of Metropolitan told him that Morrow might have been high on drugs. SF-84 at 373, 381, 412. He also testified that Ms. Blum of Metropolitan told him that Morrow might be "high" without further explanation Id . at 381-82. Officer Norton likewise testified that his report indicated that someone from Metropolitan had told him that Morrow "appeared to be high on dope." SF-85 at 525, 530-31. The defense cross-examined both Blum and Shipley on the intoxication issue. Even assuming that Morrow could somehow use the teletype for impeachment, the impeachment value appears insufficient to raise a reasonable probability that the credibility determinations of the jury would have been different. The teletype, furthermore, appears insufficient to raise a reasonable probability that the outcome of the trial or the punishment imposed would have been different. Its suppression does not appear to render the trial unfair.

The FBI memorandum (Habeas Ex. F) reflects that unidentified "[w]itnesses at both bank robberies advised that [Morrow] was apparently high on drugs or alcohol at the time of instant bank robbery." S.H. Tr. at 115. To the extent this document relates to witnesses at Metropolitan, the preceding paragraph explains why the document is immaterial within the meaning of Brady and its progeny. To the extent the memorandum concerns witnesses at First Texas, it appears to add new evidence on the issue of intoxication. No witness at First Texas testified about Morrow being intoxicated. Evidence of record, nevertheless, indicates that Morrow might have been high or drunk both before and after the robbery of First Texas. With the substantial amount of testimony already in evidence concerning Morrow's possible intoxication, the Court finds this FBI memorandum immaterial for purposes of Brady. The document does not add enough to the facts to raise a reasonable probability that the outcome of Morrow's trial or punishment would have been different. The document appears insufficient to raise a reasonable probability that the jury's credibility findings would be changed had they known of the contents of the document.

Considering the five allegedly withheld documents concerning Morrow's level of intoxication (Habeas Exs. C, D, E, F, and G) both individually and in combination, the Court finds that they provide no reason to find them material to Morrow's trial or punishment. They provide no reasonable probability that the outcome of the trial would have been different. They provide no reasonable probability that Morrow would have received a less harsh punishment. They provide no reasonable probability that the jury's credibility findings would have differed. Their suppression does not render the trial unfair or cause the Court to lose confidence as to whether the jury would have reached the same result. The documents do not address the critical issue with respect to Morrow's alleged intoxication, i.e. whether he was temporarily insane as the result of the drugs and alcohol consumed. Under the jury charge given by the trial court, the jury could acquit Morrow of capital murder due to temporary insanity caused by voluntary intoxication only if they found that he "did not know that his conduct was wrong." See T. Tr. at 699-700. The allegedly withheld documents simply do not raise a reasonable probability that Morrow did not know that his conduct was wrong. Morrow himself testified that he knew right from wrong on January 19, 1982, despite the alleged intoxication. SF-89 at 1428-32.

b. Manner in Which Shooting Occurred

Morrow also complains about the suppression of two FBI reports (Habeas Exs. D and I) and a supplemental report of the Dallas Police Department (Habeas Ex. T) that relate to the manner in which he shot Frazier. In essence Morrow contends that disclosure of these reports would have enabled him to impeach the testimony of witnesses Jo Brown and Kathy Knoebber Crouse that Morrow's shooting of Frazier appeared deliberate and intentional.

At trial Jo Brown testified that she saw Morrow "the minute he walked in the door." SF-83 at 168. She testified that Mark Frazier approached Morrow and asked "Can I help you?" Id . at 171. She testified that Morrow had a big gun in his right hand and a smaller one in his left hand. Id . at 174. She testified that he pointed the larger gun at Frazier — initially at waist level. Id . She testified that Morrow picked up the bag of money with his left hand, "turned his head very slightly, raised the gun [in his right hand] very deliberately and . . . shot [Frazier]." Id . at 177. She testified that it was not like the gun just "went off." Id . at 177, 202. "It was as deliberate as anything I have ever seen, she stated. Id . She also testified that there was "[a] slight pause" before he fired the weapon after taking aim. Id . at 183. She testified that: after the shooting, Morrow "turned around and very calmly walked out with a springy little step right up on the balls of his feet with a smirky little look on his face" — a "satisfied look" that exhibited an "I don't care attitude." Id . at 179. She stated that he had a smirky little grin on his face" when he left the bank. Id.

Habeas Exhibits D and T relate to Jo Brown's observations. Morrow contends he could have used Habeas Exhibit T to impeach Ms. Brown, because the report does "not state that Brown saw the shooting." (Pet. at 15.) He further contends that the report "reflects that Brown told Dallas police officer Leslie Myers on the date of the offense that she saw [Morrow] enter the bank and walk to the teller counter with [Frazier and that] Tammy Roy, the teller who was robbed, saw the shooting." (Id.) He also contends that he could have used Habeas Exhibit D, the field notes of an unidentified federal agent, to impeach Jo Brown regarding her testimony about how the shooting occurred and how Morrow left the bank. (Id.)

The Court finds Habeas Exhibits D and T immaterial to the manner in which Morrow shot Frazier. Neither exhibit indicates how the shooting occurred. See S.H. Tr. at 100, 574. The absence of such indication seems insufficient to impeach Brown's testimony to such an extent that would raise a reasonable probability that the outcome of the trial or punishment would be different. Neither document creates a reasonable probability that the jury's credibility determination with respect to Jo Brown would differ had the defense admitted the documents or their contents into evidence. The fairness of the trial does not appear tainted by the suppression of the documents. That the documents do not go into the same detail as Brown's trial testimony provides no basis to question the fairness of Morrow's trial. The Court is confident that the jury would have reached the same outcome even had they considered Habeas Exhibits D and T as they relate to the manner of the shooting.

Kathy Knoebber Crouse testified at trial that Morrow kept the .38 revolver pointed at Frazier at about waist high. SF-86 at 723. She testified that Morrow had the .25 pistol in his left hand pointing at Tammy Roy. Id . at 722-23. She further testified that Morrow reached for the money bag, then "he raised his arm and his hand went from being down at waist level up to Mark's head and he shot him." Id . at 726-27. Although her trial testimony does not specifically state which gun was actually fired, her testimony appears to indicate that the gun in Morrow's right hand was the one that he fired and that he held the .25 pistol in his left hand:

Q. Okay. So he reaches into that opening with his left hand and that is to grab the money, bag, right?

A. Yes.

Q. And that gun is still right: here, isn't it?

A. Yes, it was.

Q. Okay. And all sort of in one movement — all in this one movement, the gun was fired, wasn't it?

A. No, he reached forward and then he leaned back and as he was standing, he raised his arm and his hand went from being down at waist level up to Mark's head and he shot him.

SF-86 at 726-27. She testified that after the shooting, Morrow turned around and walked out of the bank with a normal gait and without another word. Id . at 730-31. She testified on cross-examination that the shooting did not appear to be an accident. Id . at 740-41. She testified that Frazier made no body movement before being shot. Id . at 744. She testified that Morrow was facing toward Frazier at the time of the shooting. Id . at 746-47.

Habeas Exhibit I concerns an interview of Crouse. According to the report, she told Agent Garcia that Morrow had the smaller gun in his right hand and the larger one in his left hand; that she could not tell which gun fired the shot; and that she "could not recall" whether the money bag was in his hand or on the counter when the shot was fired. S.H. Tr. at 253-54. Morrow contends he could have used the report to impeach Crouse on these points. (Pet. at 15.) He argues that had the jury seen the inconsistent prior statement, it "probably would have convicted him of felony murder." ( Id. at 16.)

The Court is not persuaded by Morrow's argument, rather it also finds Habeas Exhibit I immaterial within the meaning of Brady and its progeny. That exhibit indicates that Crouse told Agent Garcia that she "could not recall whether or not [Morrow] had the money bag in his hand, or if the bag was on top of the counter when the subject turned and fired one shot into the head of Mark Frazier." S.H. Tr. at 253-54. That indication appears entirely consistent with her trial testimony. See SF-86 at 726-27. The fact that Crouse reported to Agent Garcia that Morrow held the smaller gun in his right hand and the larger one in his left and later testified that Morrow held the .25 pistol in his left hand and pointed the .38 revolver at Frazier does not create a material inconsistency likely to render the verdict unreliable or the trial unfair.

Although there are minor inconsistencies between Garcia's report (Habeas Ex. I) and Crouse's trial testimony, such inconsistencies cast no doubt upon the fairness of the trial. The report raises no reasonable probability that the outcome of the trial would have changed even had Morrow used the report to impeach Crouse or otherwise place into evidence the inconsistencies. Nothing in the report contradicts Crouse's testimony that the shooting did not appear accidental. Viewing the evidence as a whole, the Court finds Garcia's report immaterial to the issue of how the shooting occurred within the meaning of Brady and its progeny. Despite the suppression of Habeas Exhibit I, the Court remains confident that the jury would have reached the same result had they been privy to the document or its contents.

The immateriality of Habeas Exhibits D, I, and T to the manner in which the shooting occurred is further established by a review of some of the trial testimony on the non-accidental nature of the shooting. Officer Rice testified that he interviewed Morrow on January 20, 1982, after reading him his "Miranda rights." SF-89 at 1458-62. Rice testified that Morrow voluntarily waived his right to remain silent. Id . at 1462. He testified: "Morrow told me that in the commission of the robbery, Mr Frazier got nervous, put a cigarette in his mouth, reached in his pocket, and he saw him come out of his pocket with something chrome. He thought it was a pistol, so he killed him." Id . at 1467. He further testified that Morrow never told him that the shooting "was an accident or his arm was down low or his thumb came off the hammer or anything like that." Id . at 1467-68. He also testified that Morrow exhibited no sign of remorse at the interview. Id . at 1470. According to Rice, Morrow acted "cocky" and did not weep or cry. Id . Morrow testified that Rice was "lying." Id . at 1548.

Mary Martin, the Nursing Supervisor at the Government Detention Center housing Morrow in the spring and summer of 1989, testified that Morrow told her about the killing of a man at a bank.²⁰ SF-89 at 1519. She testified that he told her, without inquiry on her part, that "if the man had stayed in his place and done his job, he would still be alive." Id . at 1521, 1525. She further testified that Morrow never told her it "was an accident or his finger slipped off the trigger or anything like that." Id . at 1526. She also testified that Morrow showed no signs of remorse, compassion, concern, or caring as he spoke about the killing. Id . at 1527.

20 Although Morrow conceded that he had spoken to Ms. Martin, he testified that she questioned him about the incident and he told her the story that his attorney had used at his first trial, because he believed she was asking at the behest of the government. SF-89 at 1546. He further testified that she was "lying." Id . at 1548.

Dr. M.G.F. Gilliland, a medical examiner, testified that she performed an autopsy on Mark Frazier. SF-85 at 623-24. She determined the cause of death to be "a gunshot wound to the head." Id . at 636. She determined the range of fire to be between one and two feet. Id . at 630. She further determined that the angle of entry and exit was not consistent with an accidental discharge from near Morrow's waist, unless Frazier leaned into the gun. Id . at 634-35. She testified that when Frazier was shot, he was not looking at Morrow. Id . at 636-37.

In sum, Morrow has failed to establish that the suppression of Habeas Exhibits D, I, and T violated Brady.

c. Manner of Departing First Texas

Morrow further complains that the State suppressed three FBI reports (Habeas Exs. D, I, and J) and an FBI teletype (Habeas Exhibit E) that were material to the issue of the manner in which he departed First Texas. Morrow claims that disclosure of these documents would have enabled him to impeach witnesses Brown, Crouse and Galloway on the crucial issue of whether he departed First Texas in a "cavalier manner.

The FBI teletype (Habeas Ex. E) indicates that Morrow "ran from the bank and was observed by a witness to enter a later model oldsmobile." S.H. Tr. at 103 (converted to lower case). This teletype has limited, if any, impeachment value with respect to the manner in which Morrow left First Texas. It does not reflect who said Morrow ran from First Texas. Both witnesses outside First Texas, Louis Wong and Bo Holmes, testified that Morrow ran to his vehicle. SF-83 at 80-81, 117. The teletype is consistent with their testimony. No witness from inside the bank, furthermore, testified that Morrow ran out of the bank. See id . at 144, 179 (testimony of Galloway and Brown); SF-86 at 730-31(testimony of Crouse). Morrow himself testified that he walked out of the bank. SF-87 at 1090. As the teletype does not reflect who made the statement about running from the bank and such statement is consistent with the testimony of Wong and Holmes, the Court finds its materiality for impeachment purposes insufficient to raise a reasonable probability that the credibility determinations of the jury would differ in light of the contents of the teletype.

Nancy Galloway testified at trial that Morrow walked out of First Texas without looking back, SF-83 at 144. Specifically, she stated in response to an inquiry as to how Morrow walked out the door: "Just a little bit more than just a normal walk. He wasn't running, didn't look perturbed or anything. He just walked out." Id . She testified that he was not crying, weeping, or wailing. Id .

Habeas Exhibit J concerns an interview of Galloway by Agent Meyer. S.H. Tr. at 256-57. The report indicates that Galloway told him that Morrow "r[a]n out the front door" of First Texas after the shooting. Id . at 256. Morrow contends he could use these documents to impeach trial testimony as to the manner he departed the bank. (Pet, at 17.) There is a clear inconsistency between Meyer's report and Galloway's testimony, as she had testified that he walked out of the bank. See SF-83 at 144. The Court, nevertheless, finds the report immaterial for purposes of Brady. All other testimony, including that of Morrow himself, indicates that Morrow did not run out of the bank. See SF-83 at 144, 179 (testimony of Galloway and Brown); SF-86 at 730-31 (testimony of Crouse); SF-87 at 1090 (Morrow's testimony). Use of the report at trial would not, therefore, raise a reasonable probability that the outcome of trial or punishment would have been different. Its suppression does not raise questions as to the fairness of the trial Morrow received.

As mentioned above, Exhibit D is the field notes of an unidentified federal agent. The notes make no mention of the manner in which Morrow departed First Texas. Thus, they are immaterial to this issue and provide no basis for a Brady claim.

As also discussed above, Habeas Exhibit I is an FBI report of an interview of Kathy Knoebber Crouse. In it, Crouse is reported to have observed Morrow "run out" of First Texas after the shooting. While this is inconsistent with her trial testimony that Morrow walked out of the bank, for the same reasons discussed above with regard to Galloway's inconsistent testimony, the Court finds the inconsistency immaterial.

The Court finds Habeas Exhibits E, J, D, and I immaterial to the manner in which Morrow shot Frazier and the manner in which he departed First Texas. Their alleged suppression does not undermine confidence in the trial outcome or the punishment meted out. The Court is confident that the jury would have reached the same result had they considered the exhibits.

d. Demeanor While Leaving Scene of Murder

Morrow contends that the State suppressed two documents that are material to the testimony of Jan Noble — a supplemental offense report of Officer Myers (Habeas Ex. T) and an FBI report prepared by Agent Meyer (Habeas Ex. K). Morrow contends that disclosure of these reports would have enabled him to impeach her critical testimony that he acted deliberately and took pleasure in killing Frazier.

The supplemental offense report (Exhibit T) states that "Jan Noble works in the office suite 240 that is above the bank and she was able to look out on Berkshire and observed [Morrow] get into a red and white vehicle. She wrote down the partial License of SWY." S.H. Tr. at 574 (case converted from all capitals). The FBI report (Exhibit K) states that Noble

stated that her place of business is located above [First Texas] on the third floor, and that at approximately 4:40 p.m. she had left her office and was outside the building unlocking the door of her personal automobile . . . she observed an automobile pull out very fast from in front of [First Texas] and headed in her direction. As the vehicle passed, traveling very rapidly, she saw [Morrow and Ferguson].

Id . at 258.

Morrow contends that disclosure of these documents would have supported his defensive theory that he did not act deliberately or with pleasure in killing Frazier because, contrary to Noble's trial testimony, these documents are bereft of any such references suggesting that she could not have observed him with the detail that she described at trial. For the reasons that follow, the Court finds neither Habeas Exhibit K nor T material to the credibility of Jan Noble or sufficient to raise a reasonable probability that the outcome of the trial or the imposed punishment would have been different.

Jan Noble testified at trial that at about 4:45 p.m. on January 19, 1982, she left her office and headed for her car. SF-84 at 259. She testified that, as she began to back out of her parking space, she noticed a car blocking her way. Id . at 260-61. She saw Morrow sitting in the passenger seat laughing and noted that he had "very piercing eyes." Id . at 261-62. She had "no doubt" that he was laughing and not crying. Id . at 261, 289. She testified that Morrow's vehicle whipped into traffic and that she memorized part of the license plate. Id . at 263-64. She testified that she did not know the length of time she observed Morrow. Id . at 277. She guessed that it could have been thirty to sixty seconds or more due to the heavy traffic. Id . at 279. She testified that when Morrow's vehicle left the scene, it "went forward very rapidly." Id . She further testified that when the vehicle "went onto Berkshire" they sped away hurriedly. Id . at 282.

Although the report of Officer Myers appears to indicate that Noble made her observations from her office and such indication is contrary to her trial testimony and Meyer's FBI report, the Court does not find this discrepancy material to Morrow's defense. Morrow himself testified that he believed that "no doubt" Noble "was in the parking lot and no doubt she was backing up, no doubt she was looking back, as she said." SF-89 at 1422. In addition, the FBI report which indicates that Morrow's "vehicle passed" Noble "traveling very rapidly," S.H. Tr. at 258, is not inconsistent with her trial testimony that when Morrow's vehicle left the scene, it "went forward very rapidly." Noble mentioned twice at trial that the vehicle moved away quickly. SF-84 at 279, 282. More importantly, the fact that the reports do not mention Noble's observation of Morrow's demeanor does not render them inconsistent with her trial testimony. The reports do not indicate that she did not observe Morrow's demeanor they simply do not address the issue at all.

In view of the foregoing, it seems unlikely that using Habeas Exhibit K to impeach Noble would have created any possibility of a different verdict or sentence. In short, the suppression of Habeas Exhibits K and T, as they relate to Noble's testimony, does not undermine confidence that the jury would have reached the same result as to guilt and punishment. The Court is confident that the jury's determinations of guilt and punishment would have been the same had they been privy to the content 3 of Habeas Exhibits K and T.

e. Incident at Park Cities Inn

Morrow contends that the State suppressed a teletype of the FBI (Habeas Ex. E), two FBI memoranda (Habeas Exs. F and M); and two FBI reports (Habeas Exs. O and L) that are material to what precisely happened at the Parks Cities Inn. The five documents specifically relate to how many shots were fired at the inn by Morrow and the law enforcement officers. Morrow maintains that the State suppressed a memorandum of the FBI (Habeas Ex. F) and two search warrant returns (Habeas Exs. N and O) that are also material to the events at the inn. They relate to the location of Morrow's wallet. Morrow maintains that these documents corroborate his version of events at the Park Cities Inn that he did not intend to kill the officers and are, in turn, material to his defense that he did not intend to kill Frazier. (Pet. at 25.)

Morrow argues that the disclosure of Habeas Exhibits E, F, G, and L would have enabled him "to impeach [FBI agent] Meadors' testimony that petitioner fired three shots, would have cast doubt on whether [Morrow] shot at the officers, and would have supported his testimony." (Pet. at 21-22.) He argues that the documents support his position "that the bullets found in the hall were ricochets from police gunfire." ( Id . at 22.) He also argues that the disclosure of Habeas Exhibits E, G, and M "would have enabled [him] to demonstrate that Barnum, Yunessa, and other officers, armed with .38 and .357 pistols, fired more shots into the room than they admitted, thereby enhancing the likelihood that the bullets found in the hall were ricochets from police gunfire." ( Id . at 23.) He further argues that the disclosure of Habeas Exhibits F, N, and O "would have corroborated [his] testimony that he was in the closet when he fired the shots, and would have impeached" Meadors' testimony that he did not find Morrow's wallet in the closet. ( Id . at 24.)

In a nutshell, Morrow contends that, after Ferguson surrendered, he "went to the closet" of Room 311 and "fired two shots into the ceiling of the closet" with the .38 revolver in an attempt to get himself killed. SF-87 at 1097-99. He specifically testified that he placed his wallet on the closet shelf. Id . at 1098; SF-88 at 1214. According to him, he surrendered after a barrage of gunfire by law enforcement officers. SF-87 at 1100. He testified that he never fired his gun at any law enforcement officer. Id . at 1101. From the testimony of various law enforcement officers, the State took the position that Morrow fired two or three shots at law enforcement officers from the bathroom of Room 311 before surrendering. See SF-84 at 345-47, 417-20, 446, 483-84, 507-08; SF-85 at 518, 554-60, 590-91, 605. Agent Meadors testified that when he searched Room 311, he found no wallet on a closet shelf. SF-85 at 520.

The Court finds none of the allegedly suppressed documents relating to the events at the Park Cities Inn material within the meaning of Brady and its progeny, because Morrow pled guilty to the attempted capital murders of Agent Yunessa and Officer Barnum and such pleas were admitted into evidence. See SF-88 at 1166-68, 1174, 1215-16; SF-89 at 1400-03. By pleading guilty, Morrow admitted to his intent to kill the officers. The effect of his admission is not altered by how many shots Morrow and the officers fired or from where the shots were fired or inconsistencies between trial testimony and Habeas Exhibits E, F, C, L, M, N, and O. In light of the guilty plea to the attempted capital murders, the Court finds no reasonable probability that the verdict would have been different had Morrow had Habeas Exhibits E, F, G, L, M, N, and O for use at trial. The suppression of those documents does not undermine confidence in the verdict.

Morrow argues that the documents are material to his credibility. The Court does not find that the suppressed documents create a reasonable probability that the jury's credibility findings would have differed had the jury been privy to the suppressed documents. Again, the suppression of the documents do not undermine confidence in the verdict.

In light of all the evidence presented at the punishment stage, SF-90 at 1747-1839; SF-91 at 2051-2151, 2166-2224; SF-92 at 1841-66, 1876-2049; SF-93 at 2226-2392; SF-94 at 2395-2654; SF-95 at 2656-2888; SF-96 at 2898-2999, 3026-97; SF-97 at 3130-3288, furthermore, the Court finds no reasonable probability that the punishment would have been different had Morrow had Habeas Exhibits E, F, G, L. M, N, and O available for use. The suppression of those documents do not undermine confidence in the punishment imposed.

3. Summary of Suppressed Evidence Claims

The state habeas court adjudicated Morrow's Brady claims on the merits. That adjudication neither results in a decision contrary to, nor involving an unreasonable application of, clearly established precedent of the United States Supreme Court. Nor does the adjudication appear to be based upon any unreasonable determination of the facts in light of the evidence presented. Accordingly, Morrow's claim that the State suppressed evidence material to his defense must be denied.

B. Suborning Perjured Testimony

Morrow claims the State suborned perjured testimony from Jean Blum that Morrow was not intoxicated; from Jo Brown and Kathy Knoebber Crouse as to the manner in which the shooting of Mark Frazier occurred; from Brown, Crouse, and Nancy Galloway as to the manner in which Morrow left First Texas; from Jan Noble as to Morrow's demeanor as he left the bank in the get away car; from Officer Meadors as to how many shots Morrow fired at the inn; and from Officer Barnum as to how many shots the law enforcement officers fired.

Although Morrow raised the perjury issue in his state habeas petition, S.H. Tr. at 16, 23-41, the state habeas court made no specific findings of fact or conclusions of law on the issue, see id . at 306-13, despite noting that Morrow raised the issue, id . at 305. The state habeas court, nevertheless, ruled that Morrow's "claims [we]re without merit." Id . at 357. The CCA denied habeas relief in an unpublished written order. See Ex parte Morrow, No. 6, 208-09, slip op. at 2 (Tex.Crim.App. Apr. 19, 2000) (not designated for publication). That denial is an adjudication on the merits within the meaning of 28 U.S.C. § 2254(d). See Valdez v. Cockrell, 274 F.3d 941, 947-48 (5th Cir. 2001) (holding that substantive disposition is an adjudication on the merits); Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (holding that a denial signifies an adjudication on the merits). The Court notes, furthermore, that Morrow's perjury claims were intertwined with his Brady claims in the state habeas petition as they are in the instant federal petition.

The State courts denied the perjury claims on the merits. The AEDPA standards in 28 U.S.C. § 2254(d) thus apply. The denial of the state-court habeas petition and supplement thereto on the perjury claims appear consistent with precedent of the Supreme Court. The Due Process Clause of the Fourteenth Amendment to the United States Constitution "forbids the State from knowingly using perjured testimony where there is a reasonable likelihood that such testimony will affect the verdict." Knox v. Johnson, 224 F.3d 470, 482 (5th Cir. 2000) (citing Giglio v. United States, 405 U.S. 150, 153-54 (1972)), cert. denied, 532 U.S. 975 (2001).

Although this rule is stated in terms that treat the knowing use of perjured testimony as error subject to harmless-error review, it may as easily be stated as a materiality standard under which the fact that testimony is perjured is considered material unless failure to disclose it would be harmless beyond a reasonable doubt.

United States v. Bagley, 473 U.S. 667, 679-80 (1985) (footnote omitted).

To obtain habeas relief based upon use of perjured testimony, petitioner must show that the testimony was actually false, the prosecutor knew it was false, and the evidence was "material, i.e., a highly significant factor reasonably likely to have affected the jury's verdict." Blackmon v. Scott, 22 F.3d 560, 565 (5th Cir. 1994); see also, Hafdahl v. Johnson, 251 F.3d 528, 532-33 (5th Cir.), cert. denied, 122 S.Ct. 629 (2001). The United States Supreme Court has "treated `reasonable likelihood' as synonymous with `reasonable possibility' and thus ha[s] equated materiality in the perjured-testimony cases with a showing that suppression of the evidence was not harmless beyond a reasonable doubt." See Strickler v. Greene, 527 U.S. 263, 299 (1999) (Souter, J., concurring). The Supreme Court has defined the harmless-beyond-a-reasonable-doubt standard as no "`reasonable possibility' that trial error contributed to the verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

In this instance, Morrow has not established that the proffered testimony was actually false or that the prosecutor knew it to be false. He has not established that the State knew it was using perjured testimony. Petitioner infers perjury from perceived inconsistencies between trial testimony of the witnesses and the documents allegedly withheld from Morrow by the State. Mere inconsistencies, however, do not equate to perjury. See Hafdahl v. Johnson, 251 F.3d 528, 533-34 (5th Cir.), cert. denied, 122 S.Ct. 629 (2001). "Conflicting or inconsistent testimony is insufficient to establish perjury." Kutzner v. Johnson, 242 F.3d 605, 609 (5th Cir. 2001). There is absolutely no showing, furthermore, that the prosecutor knew any proffered testimony was false. Petitioner's conclusory assertions of prosecutorial misconduct are insufficient to support a claim for habeas relief. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).

C. Ineffective Assistance of Counsel

Morrow claims his attorney was ineffective at the guilt-innocence stage of his trial when he (a) stated in opening statements that he would prove Morrow's innocence; (b) failed to discover and use FBI reports to impeach witnesses; (c) failed to impeach Noble with testimony from a previous trial of this case; (d) failed to impeach Baird with testimony from a previous trial of this case; and (e) failed to conduct an adequate investigation of the shooting at the Park Cities Inn and call FBI Agent Cutcomb as a witness. Morrow raised these claims in his state-court petition. S.H. Tr. at 65-72. The state habeas court specifically addressed them and found no ineffective assistance of counsel. Id . at 316-37. The Texas Court of Criminal Appeals denied them on the merits. See Ex parte Morrow, No. 6, 208-09, slip op. at 2 (Tex.Crim.App. Apr. 19, 2000).

The disposition of the state-court habeas petition on the issue of ineffective assistance of counsel appears consistent with existing precedent of the United States Supreme Court. To successfully state a claim of ineffective assistance of counsel under such precedent, petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To determine whether counsel's performance is constitutionally deficient courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Id . at 689. Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id . at 691. A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. Id . at 696.

The Court need not determine whether the failures of counsel, as set forth as (b) through (e) above, constitute deficient representation. Morrow has shown no prejudice from the alleged failures of counsel. To establish prejudice, he must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694 (1984).

Petitioner has demonstrated no reasonable probability that the outcome of his trial would have been different had counsel used the allegedly suppressed FBI reports to impeach witnesses (Ground (b) of ineffective-assistance claim) and had he conducted a more extensive investigation of the events at the Park Cities Inn and called Agent Cutcomb as a witness (Ground (e) of ineffective-assistance claim). The Court has already found the FBI reports and the likely testimony of Agent Cutcomb, as shown in his report, to be immaterial for purposes of Brady. Such finding requires a finding that no prejudice attaches to their absence at trial. Consequently, there is no prejudice under Strickland. In view of the guilty pleas to the attempted capital murders at the inn, the Court finds evidence relating to what transpired at the inn to be immaterial to the capital murder trial of Morrow. Any further investigation of the events at the inn could not, therefore, create a reasonable probability that the capital murder verdict would have been different.

With respect to grounds (c) and (d) of the ineffective-assistance claim, petitioner has also demonstrated no reasonable probability that the outcome of his trial would have been different had counsel impeached Noble and Baird with their previous testimony.

At the second trial, Noble testified that she identified Morrow from a photographic lineup. SF-84 at 290. She testified that, after selecting the photo, she inquired whether she was "right." Id . at 290-91. She also testified that the police officer did nor answer her inquiry. Id . at 291. At the first trial in 1983, she had testified that the officer told her she was correct. 1983 R. 427.²¹ Morrow argues that impeaching Noble on this relatively minor point "would have cast doubt on her credibility with regard to the more important issue of whether she had seen petitioner laughing and smiling as he left the bank parking lot." (Pet. at 33.) Defense counsel indeed passed up the opportunity to impeach Noble on her discussion with the police officer. Morrow has, nevertheless, shown no prejudice from such failure. The Court disagrees that impeachment on such a minor detail would create sufficient doubt as to Noble's testimony as a whole as to create a reasonable probability that the verdict would have been different. The failure to impeach Noble on her discussion with the police officer does not undermine confidence in the trial's outcome.

21 "1983 R." refers to the records of the 1983 trial. The Court currently has no such records before it. It utilizes the information contained within Morrow's federal petition, because it has no reason to doubt the accuracies of his citations.

Detective Baird testified at the second trial that Morrow appeared to be high on drugs or adrenaline. SF-84 at 448-49. He also acknowledged that Morrow could have been on a "murder high." Id . at 465. The precise questions asked by the prosecutor and Baird's answers are as follows:

Q. Now, when you arrested Mr. Morrow, did he appear to you to be high?

A. At that time he did.

Q. And I believe you testified before that in your opinion, he appeared to be high?

A. Yes, he was, in my opinion.

Q. How do you mean high?

A. Well, I don't know. I did not smell alcohol, so I didn't think the man was drunk. He was either on drugs or on an adrenalin high or something of that nature.

Id . at 448-49.

At the first trial, Baird testified that he believed Morrow was high on drugs. 1983 R. at 491-93. The Court agrees that defense counsel did not impeach Baird with his previous testimony at his second trial. The prosecution, however, specifically mentioned that Baird had testified previously. SF-84 at 448. The failure of defense counsel to specifically impeach Baird with his prior testimony does not appear prejudicial to Morrow's trial. Morrow, moreover, has shown no prejudice from such failure. The failure to impeach Baird with his previous testimony does not undermine confidence in the trial's outcome. While the former testimony appears to center on one cause for Morrow's "high", the fact that he later testified that Morrow could have been on a "murder high" or "high on adrenalin" does not undermine his previous testimony to such an extent to undermine confidence in the outcome of the trial. Baird's previous testimony, furthermore, does not address the heart of the matter, namely whether Morrow was so intoxicated so as to be rendered temporarily insane, i.e. unable to tell right from wrong. Baird specifically testified at the second trial that Morrow knew right from wrong. SF-84 at 453.

Finally, with respect to ground (a) of the ineffective-assistance claim, petitioner has not demonstrated that defense counsel was deficient when counsel made a statement in opening argument that he would prove Morrow's innocence. Nor has petitioner demonstrated a reasonable probability that the outcome of his trial would have been different had counsel not made such statement. Defense counsel made the following remarks in opening statement:

Back on voir dire, we were not allowed, as you know, to go into the facts from either points of view of the case. Remember we talked in hypotheticals only. But we get to do more than that now. We get to talk about what we think the evidence is going to show and what we believe the witnesses are going to actually tell you. I told you back then that I don't have any burden of proof, but while [the prosecutor] says that he is going to prove beyond a reasonable doubt that Ricky is guilty of capital murder, I am going to prove to you through the evidence that he is not guilty of capital murder. In fact, he is innocent of capital murder.

SF-83 at 12-13. After discussing the facts that he thought would be shown he stated:

Folks that is my argument, that is my story. I am going to prove that to you. I am not just going to lay behind some law with reasonable doubt, but I am going to out and out prove it to you and when all is said and done, the evidence is going to show you that Ricky did a very, very bad thing. He committed a robbery and he did an act clearly dangerous to human life when he pointed that gun at Mark Frazier and accidently killed him. That is not capital murder. The evidence will show you that he is guilty of murder.

Id . at 24.

The State mentioned defense counsel's statement that, "We are going to prove he is innocent," in its closing argument. SF-90 at 1648-49. Defense counsel re-addressed the issue in his closing argument. He stated:

I told you in my opening statement of this case that I wasn't going to lay back behind some log that the law otherwise would allow and just talk to you about the State having failed in its duty to convince you beyond a reasonable doubt. Instead I was going to prove to you that Ricky is not guilty of capital murder, but instead is guilty of murder under [state law].

Id . at 1670-71. He later stated:

Anyway, I said that I would prove murder to you, felony murder, and Ricky was committing a felony. He was in the process of committing an aggravated robbery at First Texas Savings Loan. There is no argument that that is what he was doing, and he did an act clearly dangerous to human life . . . .

I submit to you I have proven that to you, but I'm not going to stop right there at that point because I am going to deal with the State's case, too. Remember that while I didn't have a burden of proof, I told you I would prove it and I am telling you I did. But it is their job at all times to prove beyond a reasonable doubt all of the allegations of the indictment. . . While "beyond a reasonable doubt" has no definition, it is greater than a firm conviction or belief. . . . So if they have not done more than firmly convince you that their indictment is true, then they haven't done enough. I submit to you that by proving to you that Ricky Morrow convicted [sic] felony murder . . . that in and of itself raises a reasonable doubt.

Id . at 1678-79.

The State again alluded to the statement after defense counsel's closing:

Well, they are saying that they are not hiding behind a log. Well, there is no log to hide behind. He is caught cold. It is not like a "Whodunit." He was caught 30 minutes later with the two guns, with the money, with the get-away car, with the bank bag. It is not like there is some mystery about who killed Mark Frazier. There is no log to hide behind and when they come into a courtroom and say, "Folks, I am not hiding behind a log," that is not right to do. There is no log to hide behind.

Id . at 1706.

The trial court instructed the jury that" [i]n all criminal cases the burden of proof is upon the State. The defendant is presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt . . . ." T. Tr. at 701.

Defense counsel undoubtedly pursued a chosen strategy during opening and closing arguments to not rely entirely upon the State's burden of proof to escape a conviction for capital murder. Morrow argues that such strategy was unreasonable and "diluted the instruction on reasonable doubt in the charge" and thus constituted delicient performance. (Pet. at 30.)

Taking on a burden of proof to show innocence when the burden is in fact on the State to show guilt can constitute deficient performance on the part of defense counsel. Montez v. State, 824 S.W.2d 308, 311 (Tex.App.-San Antonio 1992, no pet.) (holding it deficient performance to take on the burden while making "extravagant promises about what would be shown to the jury, such promises never being fulfilled"). Jury instructions, furthermore, do not cure such deficiency when the errors of counsel illustrate a "lack of preparation" for the case. See Brown v. State, 974 S.W.2d 289, 294 (Tex.App.-San Antonio 1998, pet. ref'd).

In this instance, it does not appear that defense counsel pursued an unreasonable strategy. First, defense counsel did not unquestionably and unequivocally take on the burden to show innocence. Both in opening and closing arguments, he mentions the State's burden of proof. In closing argument, furthermore, he urges the jury to hold the State to its burden. His chosen strategy adequately places Morrow's defensive theory front and center before the jury at the outset. Morrow's theory was that he was guilty only of felony murder, not capital murder. In that sense, this case is atypical. Much of the State's burden was consequently conceded by not contesting the felony murder aspect of the case — a decision that is unquestionably reasonable under the facts of this case. Morrow has not overcome the presumption that defense counsel's chosen course was a "sound trial strategy." See Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997).

Even were the chosen strategy unreasonable, the deficiency was cured when counsel unambiguously urged the jury to hold the State to its burden and when the trial court properly charged the jury as o the burden of proof. In view of the instruction on the burden of proof and the manner in which defense counsel presented his strategy, the Court does not find that Morrow was prejudiced by the chosen strategy. Morrow, moreover, has not shown he was prejudiced by the strategy. He has not shown that but for the chosen strategy the outcome of his trial would have been different. This is not a case where defense counsel unambiguously placed the burden on his own client and "made extravagant promises about what would be shown to the jury, such promises never being fulfilled." See Montez v. State, 824 S.W.2d 308, 311 (Tex.App.-San Antonio 1992, no pet.). This is also not a case where the attorney unambiguously took on an unnecessary burden thus exhibiting a "lack of preparation for a case of this nature." See Brown v. State, 974 S.W.2d 289, 294 (Tex.App.-San Antonio 1998, pet. ref'd). The chosen strategy of defense counsel exhibits no lack of preparation for Morrow's defense. It instead exhibits an unsuccessful strategic maneuver. Defense counsel did not make extravagant unfulfilled promises. His promise to prove that Morrow only committed felony murder appears reasonable under the scenario presented by his client. That the jury chose to disbelieve that version and find Morrow guilty of capital murder does not hinge upon statements made during opening and closing arguments.

A petitioner must "affirmatively prove prejudice." Strickland v. Washington, 466 U.S. 668, 693 (1984). Petitioner has not done so here. To establish prejudice, he must "show the existence of evidence of sufficient quality and force to raise a reasonable probability that, had it been presented [at trial]," confidence in the trial's outcome would be undermined. See Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96 .

Morrow has not shown that the outcome of his trial would have been different absent the alleged deficiencies of counsel. Conclusory allegations are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). Petitioner presents nothing to undermine confidence in the verdict thus his claim of ineffective assistance of counsel must be denied.

RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.

INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any parry who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc) .