IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                        _____________________

                             No. 00-31226
                        _____________________


     KEITH BRAZLEY

                                     Petitioner - Appellant

          v.

     BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY


                                     Respondent - Appellee

_________________________________________________________________

          Appeal from the United States District Court
              for the Eastern District of Louisiana
                          No. 00-CV-864

_________________________________________________________________
                          April 16, 2002
Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit
Judges.

PER CURIAM:*

     A jury convicted Petitioner - Appellant Keith Brazley of

second degree murder in Louisiana state court.   After Brazley

unsuccessfully appealed his conviction, a state court denied him

habeas corpus relief.   A federal district court denied Brazley

federal habeas relief under 28 U.S.C. § 2254.    Brazley obtained a


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
certificate of appealability from this court and now appeals the

district court’s denial of federal habeas corpus relief.     For the

following reasons, we AFFIRM the district court’s judgment

denying relief.

                  I.   Factual and Procedural History

     On September 3, 1995, at approximately 3:30 a.m., Keith

Brazley (“Brazley”) entered the home of his ex-girlfriend,

Michelle Guy, and killed Anthony Brazley (“Anthony”), Michelle’s

boyfriend at that time.1     The principal events leading up to the

crime include the following.     On the evening of September 2,

1995, Anthony and Michelle attended a birthday party with

Michelle’s uncle, Gregory Guy (“Gregory”), and his wife Anita.

After the party, which ended around 2:00 or 2:30 a.m. on

September 3, Anthony, Michelle, Gregory, and Anita returned to

the home that Michelle and the Guys shared.2     Gregory and Anita

returned in their car, while Anthony and Michelle returned in

Anthony’s van.    Because Michelle was afraid that seeing Anthony’s

van in front of the Guys’ home would anger Brazley, she

instructed Anthony to park his van on the side of the house.

Michelle and Anthony then entered Michelle’s apartment to retire

for the evening.

     1
        The defendant, Keith Brazley, and the victim, Anthony
Brazley, are unrelated to each other.
     2
        Gregory and Anita resided on the ground floor of the
two-story home, and Michelle and her three children lived
upstairs in a separate apartment.

                                   2
       At approximately 3:00 a.m., Michelle answered a knock at her

front door.    Brazley knocked her down and then entered the

apartment.    Michelle fled the apartment.   Brazley then allegedly

armed himself with a kitchen knife and attacked Anthony, stabbing

Anthony in the neck.    Anthony’s stab wound resulted in excessive

bleeding that eventually caused his death.

       The sound of the confrontation woke Gregory, Anita, and

Michelle’s three children.    Gregory ran to Michelle’s apartment

and found the apartment empty except for the three children.

Gregory then went out into the front yard to investigate a trail

of blood that originated in Michelle’s apartment.    Gregory

observed Brazley pull up to the front of the house in Brazley’s

car.    Brazley then allegedly commented to Gregory, “I’ve been

waiting to do this.”    Brazley drove away from the front of the

house in his vehicle.    Gregory continued following the trail of

blood which led him around the corner of the house, where he

discovered Brazley attempting to load Anthony’s body into the

trunk of Brazley’s car.    After a warning from Gregory, Brazley

fled the scene, leaving the body on the street.    The police

arrived at Michelle’s apartment soon thereafter.    Based on

witness interviews and information received during their

investigation of the crime scene, the police arrested Brazley.

On October 26, 1995, Brazley was charged with the first degree

murder of Anthony.



                                  3
     Brazley pled not guilty and requested a jury trial.     During

discovery, defense counsel asked the State to reveal all of

Brazley’s statements that it intended to introduce at trial.     The

State responded that all res gestae statements would be used.3

During the prosecutor’s opening statement at trial, he referred

to the statement allegedly made by Brazley to Gregory suggesting

that Brazley had been “waiting to do this.”   Defense counsel

moved for a mistrial or, in the alternative, for exclusion of the

statement during the trial on the ground that the statement had

not been revealed to defense counsel during discovery.    The State

argued that the statement was a res gestae statement and was thus

properly revealed to defense counsel during discovery, but the

trial court rejected that argument.   The trial court then

excluded the statement from evidence and offered to instruct the

jury that the statement was not evidence.

     At the close of evidence, the trial court asked defense

counsel if he wanted any additional jury instructions, and

defense counsel did not offer additional instructions.    As a

result, the trial court never instructed the jury that Brazley’s

inculpatory statement to Gregory was not evidence to be

considered in reaching a verdict.   The jury found Brazley guilty




     3
        “Res gestae” refers to evidence of words or actions
which form an integral part of the charged offense. Pratt v.
Cain, 

, 232 (5th Cir. 1998).

                                4
of second degree murder on May 12, 1996.   The trial court

sentenced Brazley to life imprisonment without parole.

     Because of the prosecutor’s improper mention of Brazley’s

alleged inculpatory statement during the prosecutor’s opening

statement, the Louisiana Fourth Circuit Court of Appeal reversed

Brazley’s conviction and remanded for a new trial.    State v.

Brazley, 96-KA-1657 (La. App. 4 Cir. 11/5/97), 

.

The Supreme Court of Louisiana, however, reversed the appellate

court’s ruling and reinstated Brazley’s conviction.     State v.

Brazley, 97-K-2987 (La. 9/25/98), 

.    Brazley sought

state habeas corpus relief, but the Louisiana Supreme Court

denied such relief without explanation on October 1, 1999.       State

v. Brazley, 99-KH-1332 (La. 10/1/99), 

.

     On March 27, 2000, Brazley filed a petition for federal

habeas corpus relief in district court asserting, inter alia,

violations of his Fourteenth Amendment right to due process of

law and his Sixth Amendment right to present a defense.

Brazley’s due process claim is essentially based on the

prosecutor’s mention of Brazley’s inculpatory statement during

the prosecutor’s opening statement.   As a result of the trial

court’s decision to sanction the prosecutor’s discovery abuse by

precluding the admission of Brazley’s inculpatory statement at

trial, the statement was never introduced at trial.   Brazley

asserts that the prosecutor’s improper opening statement, coupled

with the discovery abuse and unremedied by a curative

                                5
instruction, amounts to particularly damaging prosecutorial

misconduct in violation of his due process rights.

     Brazley’s Sixth Amendment claim is essentially based on the

same facts, i.e., the State’s failure to provide during discovery

Brazley’s alleged inculpatory statement coupled with the

prosecutor’s mention of that statement during his opening

statement.    Brazley asserts that these actions violated his Sixth

Amendment right to present a defense.   Brazley argues that his

counsel’s theory of defense, i.e., that the killing may have

amounted to manslaughter but lacked the specific intent required

for a murder conviction, would have been different had his

counsel known that Brazley allegedly made the inculpatory

statement and that the statement would be brought to the jury’s

attention.

     The district court denied federal habeas relief and denied

Brazley’s request for a certificate of appealability (a “COA”).

Brazley timely filed a motion for a COA and a notice of appeal in

this court.   This court granted Brazley’s request for a COA on

the issue whether Brazley’s constitutional rights were violated

because the prosecutor referred to the undisclosed inculpatory

statement during his opening statement and because the trial

court failed to remedy the error by granting a mistrial or by

issuing a curative jury instruction.




                                  6
                             II.   Analysis

     Since Brazley filed his federal habeas application in the

district court after April 24, 1996, his claims are governed by

the standards established by the Anti-Terrorism and Effective

Death Penalty Act of 1996 (the “AEDPA”), 28 U.S.C.A. § 2254

(Supp. 2001).     See Lindh v. Murphy, 

, 336 (1997);

Green v. Johnson, 

, 1119-20 (5th Cir. 1997).        Under

the AEDPA, a petitioner must exhaust his state court remedies

before applying for federal habeas relief.     28 U.S.C. § 2254(b);

see also Rose v. Lundy, 

, 516 (1982).     Generally, the

exhaustion requirement is satisfied only when the specific

constitutional grounds urged in a federal habeas petition were

presented to the state’s highest court in a procedurally proper

manner.   Mercadel v. Cain, 

, 275 (5th Cir. 1999).

     The State argued to the federal district court that Brazley

failed to exhaust his due process and Sixth Amendment claims

prior to applying for federal relief.     Liberally construing

Brazley’s pro se state habeas petition, the district court

disagreed and concluded that Brazley properly exhausted his state

court remedies.    Although the State does not assert its

exhaustion argument on appeal, the argument was not waived.       28

U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived

the exhaustion requirement or be estopped from reliance upon the

requirement unless the State, through counsel, expressly waives



                                    7
the requirement.”).    Thus, this court may raise the exhaustion

issue sua sponte.     Tigner v. Cockrell, 

, 526 n.3 (5th

Cir. 2001).    We agree with the district court that Brazley

properly exhausted his state court remedies with respect to his

due process and Sixth Amendment claims.

     In this circuit, state and federal habeas petitions filed by

pro se petitioners “are construed liberally and are not held to

the same stringent and rigorous standards as are pleadings filed

by lawyers.”    Bledsue v. Johnson, 

, 255 (5th Cir.

1999).    Thus, Brazley’s pro se application for state habeas

relief is entitled to “a broad interpretation.”     

habeas petition alleges the denial of “a proper, and fair

deliberation by the jury” and the violation of his “right to a

fair trial.”    Liberally construed, these statements assert a

violation of Brazley’s Fourteenth Amendment right to due process

of law.    Furthermore, Brazley’s state habeas petition asserts

that the prosecutor’s mention of Brazley’s alleged inculpatory

statement undermined Brazley’s manslaughter defense.      The

petition states:

            The inadmissible statement became the state’s
            one and only ally to show intent, but an ally
            so overpowering, that nothing else [was]
            needed. Every single piece of evidence [was]
            received by the jury colored by this
            statement being put before them. Absent this
            inadmissible statement, the state’s case
            wallowed in a sea of speculation.




                                  8
Liberally construed, these statements assert a violation of

Brazley’s Sixth Amendment right to present a defense.     Lastly,

Brazley’s state habeas petition concludes with the statement that

his claims assert “violations of well established constitutional

rights.”   After granting Brazley’s state habeas petition the

broad interpretation to which it is entitled, we conclude that

the petition properly presented his Fourteenth and Sixth

Amendment claims to the Louisiana Supreme Court.   Thus, Brazley

exhausted his state court remedies with respect to these

constitutional claims.

     Under the AEDPA, a federal district court may not grant an

application for a writ of habeas corpus with respect to any claim

that was adjudicated on the merits in state court proceedings

unless the adjudication of the claim “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.”   28 U.S.C. § 2254(d)(1).4   The

phrase “clearly established Federal law” “refers to the holdings,


     4
        Because Brazley’s due process and Sixth Amendment claims
involve mixed questions of law and fact, § 2254(d)(1) applies
instead of § 2254(d)(2). See Martin v. Cain, 

, 475-
76 (5th Cir. 2001) (stating that mixed questions of law and fact
are reviewed under § 2254(d)(1) rather than under § 2254(d)(2));
see also United States v. Emuegbunam, 

, 403-04 (6th
Cir. 2001) (stating that prosecutorial misconduct presents a
mixed question of law and fact); Jones v. Gibson, 

,
958 (10th Cir. 2000) (same); United States v. Noriega, 

, 1218 (11th Cir. 1997) (same); United States v. Spillone,

, 520 (9th Cir. 1989) (same).

                                 9
as opposed to the dicta, of [the Supreme Court’s] decisions as of

the time of the relevant state-court decision.”     Williams v.

Taylor, 

, 412 (2000).     The parties do not argue, and

the record from Brazley’s state habeas proceedings does not

suggest, that the Louisiana Supreme Court’s denial of habeas

relief was not an adjudication on the merits of Brazley’s

constitutional claims.    Thus, the AEDPA affords Brazley relief

only if he establishes that the state habeas court’s adjudication

was either “contrary to” or an “unreasonable application of”

federal law.    DiLosa v. Cain, 

, 262 (5th Cir. 2002).

     A state court decision is “contrary to” federal law where

“the state court arrives at a conclusion opposite to that reached

by [the Supreme Court] on a question of law” or where “the state

court decides a case differently than [the Supreme Court] has on

a set of materially indistinguishable facts.”     

.    A state court decision is an “unreasonable

application of” federal law if “the state court’s application of

clearly established federal law was objectively unreasonable.”

   Thus, “we have no authority to grant habeas corpus

relief simply because we conclude, in our independent judgment,

that a state supreme court’s application of [federal law] is

erroneous or incorrect.”    Neal v. Puckett, No. 99-60511, 

, at *4 (5th Cir. March 15, 2002) (en banc).

     i.   Brazley’s Due Process Claim



                                 10
     Brazley asserts that the prosecutor’s improper opening

statement, along with the trial court’s subsequent failure to

issue a curative jury instruction, violated his due process

rights.5   Thus, Brazley argues that the Louisiana Supreme Court’s

denial of habeas relief on his due process claim was “contrary

to” or an “unreasonable application of” federal law.   In

analyzing whether the prosecutor’s statement violated Brazley’s

due process rights, “[t]he relevant question is whether the

[statement] so infected the trial with unfairness as to make the

resulting conviction a denial of due process.”   Darden v.

Wainwright, 

, 181 (1986) (internal citation and

quotation omitted).   In order to rise to the level of a due

process violation, the prosecutor’s statement must render the

trial “fundamentally unfair.”   

     Brazley argues that the prosecutor’s reference to Brazley’s

alleged statement to Gregory that Brazley had been “waiting” to

kill Anthony was damaging because the statement suggests that the

killing was premeditated murder rather than manslaughter.6


     5
        The prosecutor’s mention of Brazley’s inculpatory
statement was improper because the statement was not supported by
evidence presented during trial. See supra Part I.
     6
        The only theory of manslaughter relied on by Brazley at
trial was the “heat of passion” theory. Under this theory, a
homicide which would otherwise be murder can be downgraded to
manslaughter if the homicide was “committed in sudden passion or
heat of blood immediately caused by provocation sufficient to
deprive an average person of his self-control and cool
reflection.” LA. REV. STAT. ANN. § 14:31 (West 2002).

                                11
Brazley thus asserts that the prosecutor’s error destroyed his

manslaughter defense and rendered his trial fundamentally unfair.

The State counters that, because the trial court excluded

Brazley’s alleged statement to Gregory from evidence, the

prosecutor’s error actually helped Brazley’s defense.    The State

asserts that Brazley’s manslaughter defense was unsuccessful

because of the evidence introduced at trial, rather than the

prosecutor’s improper opening statement.

     The State introduced substantial evidence at trial

supporting a conviction for murder rather than manslaughter.

First, the State established that, unlike in many manslaughter

cases, Brazley was not provoked by discovering Anthony and

Michelle in bed together.    Rather, Brazley knocked down Michelle

before entering her apartment to search for Anthony.    Second, the

State’s evidence showed that Brazley had the presence of mind to

obtain a weapon from the kitchen before looking for Anthony in

the bedroom.    Brazley did not testify and did not present any

defense witnesses.    His entire defense consisted of the opening

statement of defense counsel, which appears to argue for a

manslaughter conviction (as distinguished from a first degree

murder conviction), cross-examination of the State’s witnesses

and the closing statement of his counsel (which was not

transcribed).    To the extent that the jury focused on the

reference during the prosecutor’s opening statement to Brazley’s

alleged statement, his manslaughter defense was clearly

                                 12
undermined.     But the evidence presented at trial shows little, if

any, real support for a manslaughter defense.      On this record, we

cannot say that the Louisiana Supreme Court’s determination that

Brazley’s trial was not rendered fundamentally unfair by the

prosecutor’s improper opening statement, along with the trial

court’s subsequent failure to issue a curative jury instruction,

was “contrary to” or an “unreasonable application of” federal

law.

       ii.   Brazley’s Sixth Amendment Claim

       In addition to his due process claim, Brazley asserts that

the State’s discovery violation coupled with the prosecutor’s

improper opening statement violated his Sixth Amendment right to

present a complete defense.     Brazley thus argues that the

Louisiana Supreme Court’s denial of state habeas relief on his

Sixth Amendment claim was “contrary to” or an “unreasonable

application of” federal law.

       “Whether rooted directly in the Due Process Clause of the

Fourteenth Amendment or in the Compulsory Process or

Confrontation clauses of the Sixth Amendment, the Constitution

guarantees criminal defendants a meaningful opportunity to

present a complete defense.”     United States v. Scheffer, 

, 329 n.16 (1998) (internal citations and quotations omitted).

At first glance, this sweeping language appears to reach

Brazley’s Sixth Amendment claim.       However, Brazley does not point



                                  13
to any authority, and we have been unable to discover any,

holding that a prosecutor’s improper reference to an undisclosed

inculpatory statement violated the defendant’s Sixth Amendment

right to present a defense.   Virtually all of the Supreme Court’s

cases discussing the Sixth Amendment right to present a defense

consider violations of either the Confrontation Clause due to the

presentation of State evidence without the opportunity for

defense cross-examination7 or violations of the Compulsory

Process Clause because the defendant was prevented from putting

on witnesses or from introducing evidence.8   In light of the

dearth of Supreme Court cases addressing a similar Sixth

     7
         See, e.g., United States v. Owens, 

, 557-61
(1988) (analyzing whether the introduction of testimony
concerning an out-of-court identification violated the
defendant’s rights under the Confrontation Clause when the
identifying witness is unable, because of memory loss, to explain
the basis for the identification on cross-examination); Davis v.
Alaska, 

, 315-20 (1974) (analyzing whether the
refusal to allow the defendant to cross-examine a key prosecution
witness violated the defendant’s rights under the Confrontation
Clause).
     8
        See, e.g., 

(analyzing
whether an evidentiary rule requiring the exclusion of polygraph
evidence, which was offered by a defendant to rebut an attack on
his credibility, violated the defendant’s Sixth Amendment right
to present a defense); Michigan v. Lucas, 

, 149-53
(1991) (analyzing whether the exclusion of evidence of the
defendant’s own past sexual conduct with the victim, as a
sanction for the defendant’s failure to comply with the
notice-and-hearing requirements of the state’s rape-shield
statute, violated the defendant’s Sixth Amendment right to
present a defense); Taylor v. Illinios, 

, 407-18
(1988) (analyzing whether the imposition of a discovery sanction
that entirely excluded the testimony of a material defense
witness violated the defendant’s Sixth Amendment right to present
a defense).

                                14
Amendment claim, we cannot say that the Louisiana Supreme Court’s

denial of Brazley’s state habeas claim was “contrary to” or “an

unreasonable application of” federal law.

                        III.   Conclusion

     For the foregoing reasons, we conclude that the Louisiana

Supreme Court’s denial of habeas relief on Brazley’s due process

and Sixth Amendment claims was not “contrary to” or an

“unreasonable application of” federal law.   Accordingly, we

AFFIRM the district court’s judgment denying federal habeas

relief.




                                15