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United States Court of Appeals
Fifth Circuit
F I L E D
REVISED DECEMBER 8, 2004
December 7, 2004
In the
Charles R. Fulbruge III
Clerk
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-11194
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BRUCE CARNEIL WEBSTER,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 4:00-CV-1646-Y
_________________________
Before SMITH, WIENER, and BARKSDALE,
court, which granted a COA on two issues,
Circuit Judges.
deemed unworthy of collateral review. Be-
cause Webster has failed to make a substantial
JERRY E. SMITH, Circuit Judge:
showing of the denial of a constitutional right,
we deny his application.
Bruce Webster requests a certificate of ap-
pealability ("COA") for issues the district
I.
In 1996, a federal jury convicted Webster

of, and sentenced him to death for, three of-
by the district court.3
fensesSSkidnaping resulting in death, conspir-
ing to kidnap, and using and carrying a firearm
II.
during a crime of violenceSSfor his role in the
A defendant may not appeal a final order in
shocking and exceedingly brutal kidnaping,
a § 2255 proceeding unless a circuit justice or
rape, and murder of sixteen-year-old Lisa
judge issues a COA. See 28 U.S.C. § 2253(c)-
Rene.1 We affirmed the conviction and sen-
(1)(B). To obtain a COA, Webster must make
tence on direct appeal, see United States v.
a "substantial showing of the denial of a con-
Webster, 162 F.3d 308 (5th Cir. 1998), cert.
stitutional right." 28 U.S.C. § 2253(c)(2).4
denied, 528 U.S. 829 (1999).
He must demonstrate that "jurists of reason
could disagree with the district court's reso-
In September 2000 Webster filed a motion
lution of his constitutional claims or that jurists
to vacate his conviction and sentence pursuant
could conclude the issues presented are ade-
to 28 U.S.C. § 2255, and an amended § 2255
quate to deserve encouragement to proceed
motion challenging his conviction and sentence
further." Miller-El, 537 U.S. at 327 (citing
on sixteen grounds in August 2002. The
Slack, 529 U.S. at 484).
district court rejected Webster's claims and
dismissed his petition. See Webster v. United
In determining whether to grant a COA, we
States, No. 4:00-CV-1646-Y, 2003 WL
are limited "to a threshold inquiry into the un-
23109787 (N.D. Tex. Sept. 30, 2003).
derlying merit of [Webster's] claims." Id.
"This threshold inquiry does not require full
Webster subsequently filed (in the district
consideration of the factual and legal bases ad-
court) an application for a COA on all grounds
duced in support of the claims." Id. at 336.
raised in his § 2255 motion. In January 2004,
Instead, our determination is based on "an
the district court issued a COA limited to
overview of the claims in the habeas petition
Webster's claims that (1) his mental retarda-
and a general assessment of their merits." Id.
tion renders him ineligible for the death penalty
In death penalty cases, "any doubts as to
and (2) the evidence was insufficient to war-
whether a COA should issue must be resolved
rant the finding t hat he is not mentally re-
in [petitioner's] favor." Hernandez v. John-
tarded.2 Webster thereafter filed the instant
son, 213 F.3d 243, 248 (5th Cir. 2000).
application with this court expressly limited (as
is the government's brief in opposition) to
requesting a COA on the issues not certified
1 The facts are set forth in detail in United
States v. Webster, 162 F.3d 308, 317-19 (5th Cir.
1998).
3 See United States v. Kimler, 150 F.3d 429,
431 & n.1 (5th Cir. 1998) (stating that defendant
2 Although the claims on which the district court
must expressly seek COA on additional issues not
granted a COA are not presently before us, we note
certified by district court).
that Webster's claim that the evidence at trial was
insufficient to warrant the district court's finding
4 See Miller-El v. Cockrell, 537 U.S. 322, 327
that he is not mentally retarded was raised and
(2003); Slack v. McDaniel, 529 U.S. 473, 483
rejected on direct appeal. See id. at 352-53.
(2000).
2

III.
lenged this finding on direct appeal, claiming
A.
that the statutory scheme precluded factfinding
Before the jury retired for deliberations at
by the court absent the defendant's motion,
the penalty phase, the district court excused
and that the court acted without notice,
juror Albert Fox and elevated an alternate.
thereby depriving him of due process. Re-
Webster alleges that the court committed con-
viewing the statutory challenge for plain error
stitutional error in replacing the dismissed jur-
as a result of Webster's failure to object, and
or with an alternate. Because this claim was
the due process claim de novo, we rejected
raised and rejected on direct appeal, see Web-
both claims. See Webster, 162 F.3d at 351-52.
ster, 162 F.3d at 345-47, the district court
properly held that Webster was barred from
Relying on Apprendi v. New Jersey, 530
raising it on collateral review.5 We therefore
U.S. 466 (2000), and Ring v. Arizona, 536
deny a COA on this issue.
U.S. 584 (2002), Webster sought habeas relief,
asserting that he has a due process right to
B.
have the jury make the determination as to re-
After imposing a death sentence on the ver-
tardation.7 The district court denied relief,
dict, the district court entered a factual finding
concluding that Apprendi does not retroactive-
that Webster is not mentally retarded and is
ly apply to initial habeas petitions under
therefore not immune from the death penalty
§ 2255 and that the absence of mental retarda-
under 18 U.S.C. § 3596(c).6 Webster chal
tion is not an element of the sentence constitu-
tionally required to be found by the jury.
Webster seeks a COA on this claim.
5 See, e.g., United States v. Kalish, 780 F.2d
506, 508 (5th Cir. 1986) ("It is settled in this Cir-
Webster has not made the requisite showing
cuit that issues raised and disposed of in a previous
of the denial of a constitutional right in this
appeal from an original judgment of conviction are
instance. As an initial matter, the procedural
not considered in § 2255 motions."); United States
rule announced in Apprendi is not retroactively
v. Rocha, 109 F.3d 225, 229 (5th Cir. 1997).
applicable to initial habeas petitions under §
6 The district court's factual finding, entitled
Factual Finding Regarding Mental Retardation,
states, "Webster is not mentally retarded and . . .
6(...continued)
he possesses the requisite mental capacity to un-
person.
derstand the death penalty and why it will be im-
posed on him. As a result, the defendant Webster
7 In Apprendi, 530 U.S. at 490, the Court held
is not exempt under 18 U.S.C. § 3596(c) from im-
that "any fact [other than the fact of a prior convic-
plementation of the death penalty." Section
tion] that increases the penalty for a crime beyond
3596(c) provides:
the prescribed statutory maximum must be submit-
ted to a jury and proved beyond a reasonable
A sentence of death shall not be carried out up-
doubt." In Ring, 536 U.S. at 589, the Court ex-
on a person who is mentally retarded. A sen-
tended the rule announced in Apprendi to capital
tence of death shall not be carried out upon a
cases: "Capital defendants, no less than noncapital
person who, as a result of mental disability,
defendants, we conclude, are entitled to a jury de-
lacks the mental capacity to understand the
termination of any fact on which the legislature
death penalty and why it was imposed on that
conditions an increase in their maximum punish-
(continued...)
ment."
3

2255. See United States v. Brown, 305 F.3d
(1) Counsel failed to investigate and pres-
304, 309 (5th Cir. 2002). Although this court
ent additional evidence demonstrating men-
has yet to determine whether Ring applies
tal retardation and the extreme abuse Web-
retroactively, because "the rule in Ring is
ster suffered as a child;
essentially an application of Apprendi, logical
consistency suggests that the rule announced
(2) Counsel failed to investigate and pres-
in Ring is not retroactively applicable." In re
ent (for purposes of mitigation and im-
Johnson, 334 F.3d 404, 405 n.1 (5th Cir.
peachment) evidence of racial discrimina-
2003).8
tion in Webster's Arkansas school district;
Even assuming arguendo that Ring applies
(3) Counsel allowed a "breakdown in com-
retroactively, "neither Ring [nor] Apprendi . . .
munication and a dispute over money with
render[s] the absence of mental retardation the
the mitigation specialist" to affect the sen-
functional equivalent of an element of capital
tencing phase of trial; and
murder which the state must prove beyond a
reasonable doubt." Id. at 405 (emphasis add-
(4) Counsel failed to object to the district
ed).9 Thus, because Apprendi does not apply
court's factual finding regarding mental
retroactively to Webster's initial § 2255 mo-
retardation.
tion, and Ring, even if retroactive, does not
render the absence of mental retardation an el-
To make a substantial showing of the denial
ement of the sentence that is constitutionally
of his Sixth Amendment right to reasonably
required to be determined by a jury, Webster
effective assistance of counsel, Webster must
has failed to make the requisite showing. We
satisfy Strickland v. Washington, 466 U.S. 668
deny a COA on this issue.
(1984). Thus, he must demonstrate "that
counsel's performance was deficient," id. at
C.
687, and that "the deficient performance pre-
Webster contends that his trial counsel pro-
judiced . . . [his] defense," id.
vided ineffective assistance of counsel under
the Sixth Amendment. He alleges the follow-
To establish deficient performance, a peti-
ing specific deficiencies:
tioner "must show that counsel's representa-
tion fell below an objective standard of reason-
ableness." Id. at 687-88. Judicial scrutiny of
counsel's performance must be "highly deferen-
8 See also Ring, 536 U.S. at 620-21 (O'Connor,
tial," id. at 689, and we must make every
J., dissenting) (opining that Ring's impact would
effort "to eliminate the distorting effects of
be reduced by Teague's non-retroactivity princi-
hindsight, to reconstruct the circumstances of
ple). See Teague v. Lane, 489 U.S. 288 (1989).
counsel's challenged conduct, and to evaluate
9
the conduct from counsel's perspective at the
See also Ring, 536 U.S. at 609 (noting that
time," id. There is a "strong presumption that
jury finding is constitutionally required for aggra-
counsel's conduct falls within the wide range
vating factors that operate as "the functional equiv-
of reasonable professional assistance." Id.
alent of an element of a greater offense"); Johnson,
334 F.3d at 405 ("[T]he absence of mental retarda-
tion is not an element of the sentence any more than
To establish prejudice, a petitioner "must
sanity is an element of an offense.").
4

show that there is a reasonable probability
expert on surrebuttal to critique the methodol-
that, but for counsel's unprofessional errors,
ogy used by one of the government's experts
the result of the proceeding would have been
in testing Webster's cognitive abilities.
different. A reasonable probability is a proba-
bility sufficient to undermine confidence in the
Moreover, counsel presented substantial
outcome." Id. at 694. The district court's
evidence of the abuse Webster suffered as a
denial of relief is not debatable among jurists
child, including testimony from his mother,
of reason, even on threshold review, so we
two of his brothers, two of his sisters, an aunt,
deny a COA on these claims.
a niece, and an ex-girlfriend. All of these wit-
nesses testified about the severe physical and
1.
sexual abuse that Webster's father inflicted on
Webster contends that his trial counsel
his children and his wife (Webster's mother).
were ineffective in failing to investigate and
present additional mitigating evidence demon-
strating mental retardation and the extreme
10(...continued)
abuse he suffered as a child. The district court
tified that he had examined Webster on two oc-
denied habeas relief, characterizing this inef-
casions, first in 1995 and again immediately pre-
fective assistance claim as one of degreeSSi.e.,
ceding trial, and believed him to be mildly retarded
Webster does not allege that counsel utterly
or in what he termed the educable range of the
failed to present evidence of mental retardation
mentally retarded. Denis Keyes, a certified school
and child abuse but, instead, that counsel were
psychologist, a Ph.D. in special education, and a
ineffective for failing to investigate and present
professor of special education at the College of
enough of such evidence. After engaging in an
Charleston, testified that, based on Webster's
scores on I.Q. and adaptive skills tests, he believed
exhaustive review of the trial record, the
Webster to be mentally retarded. Mark Cun-
district court determined that defense counsel
ningham, a clinical and forensic psychologist,
presented a significant amount of such evi-
testified that he had examined Webster and had
dence; and, although more of the same or
diagnosed him with several psychological disor-
similar evidence could have been furnished,
ders, including mild variety mental retardation,
counsel were not constitutionally ineffective
anti-social personality disorder, and a non-specific
for failing to present more of the same.
personality disorder involving narcissistic and
dependant features.
Indeed, our review of the trial record con-
firms that Webster's counsel were far from
Robert Fulbright, a clinical neuropsychologist,
constitutionally ineffective in investigating and
testified at length about the battery of tests he had
presenting evidence of his mental condition
administered to Webster, measuring numerous
and the abuse he suffered as a child. During
cognitive functions, including, inter alia, Web-
the punishment phase, counsel presented
ster's attention; concentration; flexibility of
thought; problem-solving skills; language function-
lengthy and detailed testimony from four
ing; academic abilities; selected sensory and motor
medical experts regarding Webster's mental
functioning; visual-facial skills; and verbal and
capacity10 and the testimony of a fifth medical
visual memory. Fulbright stated that Webster's
test results indicated significant deficits in cognitive
functioning consistent with a finding of mental
10 Raymond Finn, a clinical psychologist, tes-
retardation (or someone who had suffered some
(continued...)
type of organic brain injury).
5

These witnesses recounted graphic and violent
portion of the Washington inquiry.12 We deny
stories of sexual abuse; weekly beatings with
a COA on this ineffective assistance claim.
hoses, fan belts, and extension cords; and vari-
ous other forms of torture, including electric
2.
shock and burning. Even further, counsel pre-
Webster faults his trial counsel for failing to
sented testimony from an officer of the juve-
investigate and present evidence of racial
nile court in Arkansas that removed one of
discrimination allegedly existing in the district
Webster's siblings from the home because of
where he attended school. Webster claims it is
abuse.
vitally important for counsel to demonstrate
that the reason he was not enrolled in special
In light of this substantial body of evidence
education courses was the district's racially
and the pre-trial investigation its presentation
discriminatory practice of not placing black
required, Webster's generalized allegation that
students in such courses even when necessary,
more evidence of mental retardation and child
and not because he did not qualify. Had such
abuse should have been presented is arguably
evidence been presented, Webster contends, it
frivolous. In any event, it is insufficient to
would have effectively countered the govern-
demonstrate objectively deficient performance
ment's assertion that he is not mentally re-
by counsel.11 Because Webster has failed to
tarded.
make the requisite showing of deficient per-
formance, we need not address the prejudice
In denying habeas relief, the district court
concluded that Webster had failed to establish
either prong of the Washington standard on
this claim. Significantly, the court disagreed
11
with Webster about the salience of the evi-
See, e.g., Dowthitt v. Johnson, 230 F.3d 733,
dence. First, the court observed that the gov-
743 (5th Cir. 2000) (stating that the deferential
ernment disputed Webster's claim of mental
review mandated by Washington requires courts to
retardation primarily through the testimony of
be "particularly wary" of claims that counsel failed
to present "enough" evidence on a certain issue);
its medical experts, cross-examination of
Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir.
1999) ("Did counsel investigate enough? Did
counsel present enough mitigating evidence?
12 See, e.g., Dowthitt, 230 F.3d at 745 (assum-
Those questions are even less susceptible to judi-
ing, arguendo, deficient performance and rejecting
cial second-guessing."); Prejean v. State, 889 F.2d
ineffective assistance claim on prejudice grounds)
1391, 139899 (5th Cir. 1990) ("Although it is
(citing Buxton v. Lynaugh, 879 F.2d 140, 142 (5th
possible that [trial counsel] could have produced
Cir. 1989) ("[Washington] allows the habeas court
more of the same type of [mental capacity] evi-
to look at either prong first; if either one is found
dence . . . such detail is not required by [Washing-
dispositive, it is not necessary to address the
ton]."); see also Wilson v. Ozmint, 352 F.3d 847,
other.")); Murray v. Magio, 736 F.2d 279, 282
86162 (4th Cir. 2003) (finding counsel's decision
(5th Cir. 1984) ("[I]n addressing [an ineffective
not to present additional mitigating evidence rea-
assistance] claim, we need not approach the inquiry
sonable in light of counsel's belief that "their best
in any particular order or even address both stages
mitigation evidence had been presented," and "that
of the inquiry if an insufficient showing is made as
the additional evidence would only have detracted
to one. A claim may be disposed of for either
from the power of the mitigation evidence that they
reasonable performance of counsel or lack of
had already presented").
prejudice, without addressing the other.").
6

Webster's medical experts, and the testimony
different.14 We therefore deny a COA on this
of other witnesses familiar with Webster both
ineffective assistance claim.
in and out of the prison system. Thus, al-
though certain government witnesses noted
3.
the fact that Webster was not in special educa-
Webster contends that his trial counsel
tion courses, this point was merely incidental
were ineffective in allowing a breakdown in
to the government's case.13
communication and a dispute over fees with
the mitigation specialist to affect the investi-
Second, the district court noted that Web-
gation and presentation of mitigating evidence.
ster's brother Mark testified that most of his
Although the factual basis underlying this
brothers were in special education classes, and
claim differs from his other ineffective assis-
Tony Webster acknowledged that he was in
tance claims, the substance of the claim re-
"resource" classes. Surmising that any evi-
mains the same: But for this "breakdown,"
dence that the school district did not place
additional mitigating evidence of mental retar-
black students in special education classes
dation, child abuse, and racial discrimination in
when necessary would have been countered by
school could have been discovered and pre-
such testimony, the court concluded that coun-
sented.
sel could not be faulted for failing to pursue
this track.
Webster's vague and generalized allega-
tions of additional (unspecified) evidence of
Even assuming arguendo that counsel's
retardation and extreme child abuse notwith-
failure to investigate and present such evidence
standing, defense counsel presented substantial
constitutes objectively deficient performance,
quantities of mitigating evidence concerning
the district court's conclusion that Webster
retardation and child abuse.15 Webster cannot,
cannot demonstrate the requisite prejudice is
not debatable. Indeed, in rejecting Webster's
claim on direct appeal that the evidence was
14 See Washington, 466 U.S. at 694 (explaining
insufficient to warrant the conclusion that he
that the prejudice standard requires demonstration
was not mentally retarded, this court noted
that, but for challenged performance, "result of the
that "[t]he government presented substantial
proceeding would have been different").
evidence to support the finding." Webster,
162 F.3d at 353 (emphasis added). Conse-
15 The jury's findings on the statutory and non-
quently, the incremental impeachment value, if
statutory mitigating factors proposed by defense
any, of such evidence does not raise a reason-
counsel demonstrate the point: All twelve jurors
able possibility that, had the evidence been
found that Webster "suffered from physical abuse,
presented, the outcome would have been
emotional abuse, and/or parental neglect during his
upbringing"; six jurors found that he "grew up in
an atmosphere of violence and fear, which has
misshaped his perception as to the acceptability or
13 E.C. Turner, Linda Monk, and Pat Drewett,
necessity of violent conduct"; four jurors found
a counselor and two teachers, respectively, from
that he "is or may be mentally retarded" and "has
the junior high school Webster attended, testified
low intellectual functioning"; four jurors found that
that, in their opinion, Webster was not mentally
his level of participation in the commission of the
retarded, and noted that he was not in special ed-
offense "was attributable, at least in part, to the
ucation classes.
(continued...)
7

therefore, on threshold review, establish either
§ 3596(c).17 Thus, there was no legal basis on
deficient performance or prejudice for this
which trial counsel could conclude (or even
claim. We therefore deny a COA on this
suspect) that the court had committed error.18
ineffective assistance claim.
4.
17 See Webster, 162 F.3d at 351 ("Webster
Webster claims ineffective assistance from
alleges the factual finding was in contravention of
counsel's failure to object to the district
the [Federal Death Penalty Act's] statutory
court's factual finding, discussed above, that
scheme, but the statute fails to address how to
he is not mentally retarded and thus is not ex-
ensure that the mandate of § 3596(c) is carried
out."); id. (noting that "[b]ecause the statute fails
empt from the death penalty under § 3596(c).
to provide guidance, and no case has addressed this
The district court disagreed, concluding that
issue, the law is not pellucid"); id. at 352 ("The
counsel's failure to object to the finding cannot
statutory scheme simply does not answer who
be deemed ineffective assistance when it was
decides this issue . . . .").
not evident, based on the law at the time, that
a potential error had occurred.
18 We suppose that trial counsel could have ad-
vanced the statutory argument Webster made on
At the time of trial (which is what matters
direct appealSSnamely, that § 3593(b)(3), which
when assessing counsel's performance), 16 there
provides that the court will act as a fact-finder "up-
was no law on who has the authority to de-
on the motion of the defendant and with the ap-
cideSScourt or jurySSwhether a defendant is
proval of the attorney for the government," pre-
mentally retarded within the meaning of
cludes any fact-finding by the court absent a mo-
tion by defendant. On direct appeal, however, we
rejected this argument, noting that this provision
refers "only to the determination of the sentence,
Webster, 162 F.3d at 351, and "in no way implies
15(...continued)
that all court fact-finding must be on the defen-
influence of one or more of the other participants
dant's motion," id. at 351-52.
involved in the commission of this crime"; all but
one of the jurors found that he "has the love and
Trial counsel might also have advanced the oth-
support of his family"; four jurors found that other
er argument made by Webster on direct appeal:
defendants, "equally culpable in the crime, will not
that in the absence of a specific statutory scheme,
be punished by death"; and two jurors found that
the only logical conclusion is that the jury must be
Webster "would likely adapt to prison life if he
the fact-finder on the issue of mental retardation.
were sentenced to life imprisonment," and "can be
Here again, however, we rejected this self-styled
controlled in a prison setting." See Webster, 162
"logical" argument, noting that it "suffers from
F.3d at 319-20 n.2. In fact, defense counsel pre-
gaps in reasoning." Id. Thus, even these argu-
sented expert testimony to the point that the district
ments, which are based not on any clearly estab-
court decided to limit Webster's surrebuttal on
lished law, but rather on inferences from the pres-
cumulativeness grounds. See id. at 350-51 (re-
ence and absence other statutory provisions, were
jecting due process challenge to this limitation).
deemed meritless on direct appeal, and thus trial
counsel's failure to raise them cannot form the
16 See, e.g., Lucas v. Johnson, 132 F.3d 1069,
basis of a finding of ineffective assistance of coun-
1078 (5th Cir. 1998) ("The determination whether
sel. See, e.g., Kimler, 167 F.3d at 893 (reasoning
the performance of counsel was deficient is based
that attorney's failure to raise meritless argument
upon the law as it existed at the time of trial.").
(continued...)
8

This dearth of authority persists even today;
a basis for showing deficient performance.
no statutory amendment or judicial decision
Reasonable jurists cannot disagree with the
has addressed whether the mental retardation
district court's conclusion that counsel were
finding envisioned by § 3596(c) is a question
not constitutionally ineffective. We deny a
for the court or the jury. Moreover, even if
COA on this ineffective assistance claim.
there were a subsequent legal development
holding that the jury is the fact-finder required
D.
by § 3596(c), the admonition to reviewing
Webster seeks a COA on his claim that the
courts to "eliminate the distorting effects of
prosecution withheld impeachment evidence in
hindsight . . . and to evaluate the conduct from
contravention of its due process obligation
counsel's perspective at the time," Washing-
under Brady v. Maryland, 373 U.S. 83 (1963),
ton, 466 U.S. at 689, would render Webster's
and its progeny. The evidence allegedly with-
claim meritless.19
held is the same material Webster faults his
trial counsel for not investigating and present-
It follows, then, that counsel cannot be
ing to the jury: alleged racial discrimination in
deemed constitutionally ineffective for failing
the district where Webster attended school and
to anticipate a "subsequent development," and
specific evidence of the district's discrimina-
Webster cannot rely on the failure to object as
tory practice of failing to place black students
in special education classes when necessary.
As with his ineffective assistance claim, Web-
18(...continued)
ster maintains that disclosure of this evidence
cannot form basis of ineffective assistance claim).
would have provided a basis for impeaching
government witnesses who testified that he
19 See, e.g., Lucas, 132 F.3d at 1078-79 (reject-
was not mentally retarded and who noted the
ing claim of deficient counsel performance "be-
fact that he was not enrolled in special educa-
cause counsel is not required to anticipate subse-
tion classes.
quent developments in the law"); Organ v. Cock-
rell, 297 F.3d 349, 36061 (5th Cir. 2002) (hold-
ing that failure to object to supplemental mitigating
The right to due process is violated where,
evidence instruction was not deficient performance
on request, the government conceals evidence
before the issuance of Penry v. Johnson, 532 U.S.
(exculpatory as well as impeachment) that is
782 (2001)); Clark v. Collins, 19 F.3d 959, 965-
favorable to the defendant and material to
66 (5th Cir. 1994) (rejecting claim of deficient
guilt or innocence, irrespective of the good
performance for failure to object to racially-moti-
faith of the prosecution. See id. at 8788;
vated peremptory strikes before issuance of Batson
United States v. Bagley, 473 U.S. 667, 676
v. Kentucky, 476 U.S. 79 (1986)); Wiley v. Puck-
(1985); United States v. Ellender, 947 F.2d
ett, 969 F.2d 86, 102 (5th Cir. 1992) (same); Gray
748, 756 (5th Cir. 1991). "[E]vidence is mate-
v. Lucas, 677 F.2d 1086, 1096 n.9 (5th Cir. 1982)
rial only if there is a reasonable probability
(holding that failure to object to prosecutor's
that, had the evidence been disclosed to the
interjection of future dangerousness through expert
defense, the result of the proceeding would
testimony did not constitute deficient performance
have been different. A `reasonable probability'
in advance of caselaw discrediting such testimony);
is a probability sufficient to undermine confi-
see also United States v. Kleinbart, 27 F.3d 586,
593 (D.C. Cir. 1994) (holding that failure to
dence in the outcome." Bagley, 473 U.S. at
appeal jury instruction did not constitute ineffective
682.
assistance "[g]iven the unclear state of the law").
9

fails the threshold showing of materiality. "In
Relying on its antecedent conclusion that
assessing the materiality of undisclosed im-
Webster could not demonstrate prejudice
peachment evidence, `we must consider the
from counsel's failure to discover and present
nature of the impeachment evidence improp-
evidence of the school district's discriminatory
erly withheld and the additional evidence . . .
practices, the district court denied habeas relief
independent of the disputed testimony.'"
on this claim. Jurists of reason cannot find
Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir.
debatable or wrong the rejection of Webster's
1994) (quoting United States v. Weintraub,
Brady claim.
871 F.2d 1257, 1262 (5th Cir. 1989)).
Even assuming, arguendo, that Webster can
Although Webster maintains that such evi-
make the threshold showing that the govern-
dence could have effectively countered the
ment suppressed (and was therefore in pos-
government's position that he is not mentally
session of) this information,20 Webster's claim
retarded, our analysis of his related ineffective
20 Webster attempts to make this showing by
vaguely referring to a desegregation lawsuit pro-
secuted by the Department of Justice against seven
Arkansas school districts, including his, in 1970.
20(...continued)
See generally United States v. Watson Chapel
ernment are severable entities"); United States v.
Sch. Dist. No. 24, 446 F.2d 933 (8th Cir. 1971)
Auten, 632 F.2d 478, 481 (5th Cir. 1980) (finding
(consolidated appeal regarding, inter alia, order
prosecution was in possession of criminal history
requiring district to implement plan for unitary
of witness even though no background check was
school district, and order finding members of
conducted); United States v. Deutsch, 475 F.2d
school board guilty of civil contempt for failing to
55, 57-58 (5th Cir. 1975) (finding prosecutor was,
comply with implementation order). Webster
for purposes of Brady, in possession of information
maintains that "by virtue of its previous prosecu-
in Postal Service files), there are limits on the
tion of the school district, [the government] was in
imputation of knowledge from one arm of the
possession of evidence which questioned the credi-
government to prosecutors. "[T]he prosecution is
bility of their witnesses." In other words, Webster
deemed to have knowledge of information readily
seeks to impute to the federal prosecutors trying his
available to it . . . ." Williams v. Whitley, 940
case knowledge of a desegregation lawsuit filed in
F.2d 132, 133 (5th Cir. 1991) (emphasis added).
the 1970's against his childhood school district,
from which he claims some impeachment evidence
If this evidence is deemed "readily available" to
can be inferred.
the prosecutors for purposes of Brady, we are
hard-pressed to conceive of any information that
Although "the prosecution" for Brady purposes
would fall outside Brady's constitutional mandate
does encompass more than the individual prosecu-
of disclosure. After all, even knowledge of the
tor or group of prosecutors trying the case, and the
school district's history of segregation would not
prosecution may be deemed, in limited circum-
lead a reasonable prosecutor where Webster claims
stances, to be in "constructive possession" of Bra-
it leads, i.e., to question the credibility of school
dy material, see, e.g., Martinez v. Wainwright, 621
district employees testifying about Webster's
F.2d 184, 186-87 (5th Cir. 1980) (finding no sug-
mental capacity. Thus, Webster's conclusional
gestion in Brady "that different `arms' of the gov-
allegation of knowledge is not sufficient to
(continued...)
demonstrate suppression for purposes of Brady.
10

assistance claim obtains equally here.21 In the
impeachment value, if any (given the conflict-
main, the prosecution presented substantial ev-
ing testimony by Webster's brothers), of such
idence countering Webster's claim of mental
evidence does not raise a reasonable probabil-
retardation, and the government's effort did
ity that, had the evidence been disclosed, the
not depend in any significant respect on Web-
outcome would have been different.24
ster's non-enrollment in special education
courses.
In sum, even indulging (on this threshold
review) Webster's highly attenuated and sus-
To the contrary, beyond cross-examining
pect attempt to impute knowledge of this evi-
defense experts, the government produced two
dence to the prosecution, the evidence alleg-
medical experts who testified that they did not
edly withheld is not material. Because jurists
believe Webster was mentally retarded, and,
of reason could not find this due process claim
primarily, that the methodology used by the
debatable, we deny a COA on this issue.
defense experts to gauge his mental capacity
was critically flawed.22 Moreover, the govern-
E.
ment presented numerous other witnesses
Webster contends that § 3596(c) is uncon-
whose testimony contradicted Webster's claim
stitutionally vague and violates his right to due
of mental retardation.23 Thus, the incremental
process because it fails to provide any guid-
ance on (1) whether the issue of mental retar-
dation is to be decided by the judge or jury; (2)
21 Accord Wilson, 28 F.3d at 437 n.6 (noting
whether the decision is to be made pretrial or
that Bagley's formulation of the materiality stan-
at sentencing; (3) what is the burden of proof;
dard for Brady claims is derived from Washington,
and (4) what is the relevant standard for a
466 U.S. at 698).
finding of retardation. Although the district
22
court noted that Webster had failed to raise
Both government experts, George Parker and
this claim on direct appeal,25 the court never
Richard Coons, testified that, in their opinion,
Webster had an incentive not to perform well on
the cognitive tests administered after he was
charged in this case, and pointed to prior cognitive
23(...continued)
tests taken by Webster on which he scored higher.
mitted names and addresses of people for his
Parker also testified at length regarding his position
visitation list; and on one occasion complained be-
that the so-called "Vineland test" administered by
cause the change he received from the prison
defense expert Dr. Keyes was an inappropriate and
commissary was incorrect.
deceptive measure of Webster's adaptive skills
given Webster's lifestyle as a drug-dealer.
24 See, e.g., Drew v. Collins, 964 F.2d 411,
419-20 (5th Cir. 1992) (holding that incremental
23 These witnesses included correctional officers
impeachment value from minor inconsistencies be-
and fellow inmates who testified that, while incar-
tween witness' taped and written statements did not
cerated, Webster engaged in various activities
satisfy Brady's materiality standard).
potentially inconsistent with a finding of mental
retardation. For example, he wrote letters to fellow
25 Indeed, as we noted, Webster argued on direct
inmates; received letters and newspapers; read
appeal that the statute did provide sufficient guid-
aloud from newspapers; wrote request slips for
ance: It entrusted the decision to the jury. As
various services; wrote written grievances; sub-
support for this interpretation, Webster pointed to
(continued...)
(continued...)
11

theless proceeded to consider and reject it on
breathe new life into it on collateral review,
the merits.
Webster relies on new statistical evidence
compiled by the Department of Justice.27
Webster may not, however, raise this issue
Finding that those statistics are identical to
for the first time on collateral review without
those held insufficient to state a prima facie
showing both "cause" for his procedural de-
case of selective prosecution in United States
fault and "actual prejudice" resulting from the
v. Jones, 287 F.3d 325, 332-35 (5th Cir.
error. See, e.g., United States v. Shaid, 937
2002), the district court rejected this claim.
F.2d 228, 232 (5th Cir. 1991) (en banc). He
has neither alleged nor shown cause and pre-
We agree that the statistics are wholly in-
judice, so this claim cannot form the basis of a
sufficient to meet the threshold requirement
substantial showing of the denial of a constitu-
that Webster was singled out in the capital
tional right. We deny a COA on this issue.
charging decision on the basis of his race, but
F.
that others similarly situated were not. De-
Webster avers that the death sentence was
spite citing to new statistical data, Webster has
applied in his case as a result of a "systematic
done no more than repeat his claim of error re-
pattern of racial discrimination" on the part of
jected on direct appeal. Because he has failed
the government in violation of the Fifth and
to make the requisite showing of the denial of
Eighth Amendments. This claim was raised
a constitutional right, we deny a COA on this
and rejected on direct appeal.26 Attempting to
issue.
G.
25(...continued)
Webster contends that his due process
18 U.S.C. § 3593(b), which provides that the court
rights were violated by the presentation of
will act as a fact-finder "upon the motion of the de-
"perjured and damaging testimony" from co-
fendant and with the approval of the attorney for
defendants Steven Beckley and Marvin Hollo-
the government." He asserted that this provision
way. He alleges that two post-trial events pro-
precluded any fact-finding by the court absent the
vide a basis for this claim: first, that Beckley
defendant's motion. See Webster, 162 F.3d at
351-52.
told a correctional officer and an inmate that
he had lied at Webster's trial in an effort to im-
26 Webster argued on direct appeal that the dis-
prove his standing with the government; and
trict court erred by denying his motion (which was
second, that Orlando Hall, another co-defen-
based on alleged racial discrimination in the charg-
dant, received a letter from Holloway stating
ing decision) to dismiss the government's notice to
that he owed Webster an apologySSa state-
seek the death penalty. In rejecting this claim, we
ment Webster cites as evidence that Holloway
concluded that Webster had failed to make the
lied at trial.
requisite showing that he was singled out for
selective prosecution; that his statistical evidence
was insufficient to rebut the good-faith presump-
tion on the part of the prosecution; and that the
26(...continued)
objective circumstances of the crime and the
death penalty. See id. at 333-35.
sufficiency and availability of evidence to the prove
the elements required constituted proper and legiti-
27 See DEP'T OF JUSTICE: THE FEDERAL DEATH
mate non-discriminatory grounds for seeking the
PENALTY SYSTEM: A STATISTICAL SURVEY
(continued...)
19882000 (2000).
12

The district court determined that, even if
allegations of perjury are accurate, his underly-
Webster's allegations of perjury were accepted
ing due process claim is not debatable, because
as true, his claim is meritless given his failure
he has failed even to allege that the prosecu-
even to allege that the government knew that
tion knew that any statements made by either
any of the testimony given by Beckley or
witness were false.29
Holloway was false.28 Jurists of reason could
not find debatable or wrong the district court's
Because Webster has failed to identify any
rejection of this claim.
statement that is false, and has not even al-
leged the government knowledge of falsity on
"[I]t is established that a conviction ob-
which a due process claim is based, he has not
tained through the use of false evidence,
made a substantial showing of the denial of his
known to be such by representatives of the
constitutional right to due process. We deny
State, must fall under the Fourteenth Amend-
a COA on this issue.
ment . . . . The same result obtains when the
State, although not soliciting false evidence,
H.
allows it to go uncorrected when it appears."
Webster seeks a COA on his claim that his
United States v. O'Keefe, 128 F.3d 885, 893
(alleged) mental retardation renders his execu-
(5th Cir. 1997) (quoting Napue v. Illinois, 360
tion contrary to binding international law. The
U.S. 264, 269 (1959) (emphasis added)). To
district court rejected this claim on the merits,
establish a due process violation based on the
concluding that international law affords
government's use of false or misleading testi-
Webster no greater relief than does domestic
mony, Webster must show that (1) the testi-
constitutional relief under the Eighth Amend-
mony in question was actually false; (2) the
ment as interpreted in Atkins v. Virginia, 536
testimony was material; and (3) the prosecu-
U.S. 304 (2002). Jurists of reason could not
tion had knowledge that the testimony was
disagree or find wrong the district court's
false. Id. at 893 (citing United States v. Black-
conclusion in that regard.
burn, 9 F.3d 353, 357 (5th Cir. 1993)).
Reliance on that conclusion is not neces-
As a threshold matter, Webster has failed to
sary, however. Because Webster did not raise
identify even a single specific statement made
this claim on direct appeal and has failed to
by either witness that is false; instead, he offers
demonstrate cause and prejudice for this de-
only conclusional statements about the ulti-
fault, in either his § 2255 motion or his COA
mate falsity of Beckley's and Holloway's
application in the district court or with this
testimony. Moreover, even if Webster's
court, he may not raise it for the first time on
collateral review. See, e.g., Shaid, 937 F.2d at
28 The district court also questioned whether
Webster had presented any evidence demonstrating
29 See, e.g., East v. Scott, 55 F.3d 996, 1005
that either witness lied at trial. In fact, the court
(5th Cir. 1995) (holding that allegations failed to
observed that both Beckley's alleged statement and
establish prima facie case of Napue violation
Holloway's letter could plausibly be read as indica-
where defendant "fails to allege any facts suggest-
tions that both men were apologetic about testify-
ing prosecution knew about" contested subject);
ing against Webster to improve their own liability
see also O'Keefe, 128 F.3d at 893; Blackburn,
situations and not as admissions of perjury.
9 F.3d at 357.
13

232. We deny a COA on this issue.
merely claims error in the denial of discovery
and lists the thirteen grounds for relief on
I.
which he seeks to engage in discovery. His
Webster seeks a COA regarding the district
application thus reflects a desire to use the ha-
court's denial of his request for discovery.30
beas corpus discovery mechanism to explore
He claims that the court abused its discretion
his case "in search of its existence." Id. (quot-
in denying discovery, thereby violating his due
ing Aubet v. Maine, 431 F.2d 688, 689 (1st
process rights.
Cir. 1970)). This court does not, however,
"sanction fishing expeditions based on peti-
A habeas petitioner may "invoke the pro-
tioner's conclusory allegations." Rector, 120
cess of discovery available under the Federal
F.3d at 562 (citing Perillo, 79 F.3d at 444).
Rules of Civil Procedure if, and to the extent
Because Webster has failed to identify, with
that, the judge in the exercise of his discretion
specific allegations, any dispositive factual dis-
and for good cause shown grants leave to do
putes, we deny a COA on this issue.
so, but not otherwise." Rector v. Johnson,
120 F.3d 551, 562 (5th Cir. 1997) (citing
The application to extend the COA issued
Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir.
by the district court is in all respects DENIED.
1996)). "A federal habeas court must allow
discovery and an evidentiary hearing only
where a factual dispute, if resolved in the
petitioner's favor, would entitle him to relief .
. . ." Ward v. Whitley, 21 F.3d 1355, 1367
(5th Cir. 1994). Conclusional allegations are
insufficient to warrant discovery; the petitioner
must set forth specific allegations of fact. Id.
(citing Willie v. Maggio, 737 F.2d 1372 (5th
Cir. 1984)).
Webster's application does not allege a sin-
gle factual dispute, which, if resolved in his fa-
vor, would entitle him to relief.31 Instead, he
30 During the pendency of his initial § 2255 mo-
tion, Webster requested and was granted permis-
sion to file a motion for discovery, which the court
denied.
31 Compare Perillo, 79 F.3d at 444-45 (finding
error in denial of discovery where habeas petitioner
31(...continued)
had stated a specific factual disputeSSwhether her
entitle her to relief), with Rector, 120 F.3d at 562
attorney represented another person involved in the
(affirming denial of discovery request where ha-
charged crime, and therefore had a conflict of
beas petitioner had "failed to make at least a prima
interestSSwhich, if resolved in her favor, would
facie showing of what specifically he intends to
(continued...)
prove").
14