Revised September 16, 1998

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                          No. 97-20624




DAVID EARL GIBBS
                                         Petitioner-Appellant

                               versus

GARY JOHNSON, Warden, Director,
Texas Department of Criminal Justice
Institutional Division
                                         Respondent-Appellee




          Appeal from the United States District Court
               For the Southern District of Texas


                        September 8, 1998

Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     David Earl Gibbs has been on death row in Texas for the past

twelve years following his conviction by a jury for raping and

cutting the throat of Marietta Bryant in the course of a burglary

of her apartment in Conroe, Texas, on the night of July 1, 1985.

Gibbs also raped and killed Carol Ackland, Ms. Bryant’s roommate

that evening in the apartment, but the state charged only the

assault and death of Marietta Bryant.
      Gibbs petitions the federal courts to set aside his conviction

and   sentences     contending    the       State    of   Texas   violated   his

constitutional rights in two ways:                  the prosecution failed to

disclose evidence relevant to the jury’s sentencing decision, and

the state trial judge admitted evidence of an offense for which he

had been found innocent.          Gibbs also urges that the federal

district court denied Gibbs the opportunity to conduct discovery in

support of his federal habeas petition. The United States District

Court denied relief and refused a certificate of probable cause.

After briefing and oral argument we also refuse the certificate.



                                        I

      The   Texas    Court   of   Criminal          Appeals   affirmed   Gibbs’s

conviction and sentence on direct appeal, Gibbs v. State, 

(Tex. Crim. App. 1991), and the Supreme Court denied his

petition for writ of certiorari on February 24, 1995.                Judge Olen

Underwood of the 284th District Court, Montgomery County, Texas,

recommended denial of Gibbs’s Second Application for Writ of Habeas

Corpus on July 14, 1995, and Gibbs filed his federal petition three

days later.    The federal district court denied relief on May 15,

1997, and refused to issue a certificate of probable cause, but

left its stay of execution in place.            Gibbs filed his Application

for Certificate of Probable Cause on November 24, 1997.                  Briefing

was completed on April 20, 1998, and we heard argument on August

17, 1998.

                                        2
     The standard for granting a certificate of probable cause is

whether Gibbs has made a substantial showing that he was denied a

federal right.   Barefoot v. Estelle, 

(1983).     The

AEDPA is not applicable, and we moved to the merits of the appeal

with briefs and oral argument rather than decide the request for a

certificate of probable cause without that assistance.        This

insistence on a better look does not necessarily signal probable

cause.   Some cases become clear with the benefit of full briefing

and oral argument, leaving the case one about which reasonable

jurists would not differ.   This is such a case.



                                 II

                                -1-

     Gibbs’s main contention is that in the punishment phase of

trial the prosecution called Roy Moody, who testified that Gibbs

had assaulted him in their cell, but failed to disclose that prison

officials had dismissed disciplinary charges against Gibbs arising

from the incident.   Brady v. Maryland, 

(1963), imposes

an affirmative duty to disclose to the defense evidence that is

both favorable to the accused and material either to guilt or to

punishment, including impeachment evidence.   See United States v.

Bagley, 

, 676 (1985).

     The principles governing the duty of the prosecutors to

disclose evidence material to the defense, Brady material, are now

easily stated if not always easily applied.   Violation of the duty

                                 3
to disclose does not turn on good or bad faith.                Rather, it is the

character of evidence, not the character of the prosecutor that

matters.     See United States v. Agurs, 

(1976).                       A

defendant must show that the withheld evidence could reasonably be

taken to put the case in a different light so as to undermine

confidence in the verdict.           Kyles v. Whitley, 

(1995).

At   the   same   time,    “[t]he     mere     possibility    that   an    item    of

undisclosed information might have helped the defense, or might

have   affected    the    outcome     of   the    trial,    does   not    establish

‘materiality’ in the constitutional sense.”                 

.    There is no duty to furnish a defendant with exculpatory

evidence that is fully available to the defendant though the

exercise of reasonable diligence.              Rector v. Johnson, 

(5th Cir. 1997), cert. denied, 

(1998).                   Relatedly,

we have found no constitutional error in failing to disclose

evidence    contrary      to   the   prosecutor’s     assertions     in    closing

argument, where the defendant would have known about the “withheld”

evidence.    West v. Johnson, 

, 1399 (5th Cir. 1996),

cert. denied, 

(1997).                      At the same time, a

prosecutor’s duty to disclose is not defined by his knowledge.                     It

is no answer that the prosecutor did not know of exculpatory

evidence, even in the hands of another arm of the state.                          See

United States v. Auten, 

, 481 (5th Cir. 1980).



                                       -2-

                                           4
     Moody    was    not    listed      as       a   witness   before   trial.     The

prosecutor first disclosed to the defense and the court that it

intended to call Moody on the morning that he testified.                          The

prosecutor explained that he had just learned of Moody and had

brought him to trial from the state prison where he was an inmate.

He informed the court that Moody was expected to testify about

Gibbs's assault of him in a jail cell.                   The trial judge overruled

Gibbs’s   objection        that   the    witness        had    not   been   previously

disclosed and denied his request to continue the trial long enough

to allow the defense to prepare for the witness.                     Moody testified

as follows:

     Q:      Did you have occasion to have any kind of confrontation
             or fight with Mr. Gibbs back on January 15th?

     A:      Yes; we did.

     Q:      Would you tell the jury in your own words what happened,
             please?

     A:      I asked him to turn his radio down 'cause it woke me up
             and he said no, so I unplugged it and that's when he hit
             me in this eye and then hit me over here in the ear and
             then pounded with both hands on the back of my neck and
             choked me and told me he'd kill me.

     Q:      And, this happened on January 15th?

     A:      I'm not sure.

     Q:      Around that time anyway?

     A:      Yeah.

     Q:      Had you done anything other than unplug the radio?

     A:      No; I did not.

     Q:      Had you and he ever had any problems before?

                                             5
     A:   No.

     Q:   Did you ever see the defendant get in a fight or beat up
          on anybody else while you were up there in that cell?

     A:   One other person.

     Q:   Would you tell the jury what you saw?

     A:   David jumped across the table and beat the hell out of
          that boy.

     Defense counsel’s cross examination suggested provocation.

There was no hint that Gibbs acted in self defense.   The prosecutor

in his closing argument referred to Moody’s testimony, pointing out

Gibbs’s violent tendencies even in the controlled circumstance of

confinement. It is plain that the prosecutor thought the testimony

helpful to the state's case – given his scramble to produce the

witness in the middle of the sentencing phase and his use of the

testimony in his close.

     Nearly a decade later in the course of developing a habeas

petition, defense counsel found in the prosecutor’s files a jail

record (Montgomery County Jail incident report) regarding the

incident bearing the notation “:Dism:Self Defense.”      Montgomery

County Sheriff’s Department Officer Jack McKeon, commander of the

jail in 1986 during the time of the incident, made the notation but

later suffered a series of strokes and is unable to testify.

     The incident occurred on January 15, 1986, at 5:20. According

to jail records, Gibbs signed an offense report advising, “You are

charged with violation of the Montgomery County Jail Rules 003-

Fighting w/another person.”   The notice read:

                                 6
     You will appear before the disciplinary committee of the
     Montgomery County Jail within Seven (7) but not less than
     twenty four (24) hours, to answer to the charges brought
     against you.

     If found guilty, you have the right to appeal the
     decision of the committee in writing to the jail captain.
     The jail captain’s decision will be final and returned to
     you within ten (ten) days. This appeal must be initiated
     within ten (10) days from the date of their decision.

     Moody appeared at the punishment phase of the trial on March

19, 1986, long after the disciplinary hearing set for January 22,

1986.

     The jail offense report had additional information about the

incident:

          On 01.15.86 at approximately 5:20 p.m. I, Sgt. Jones
     and Deputy P. Harris were working the 4th floor desk when
     I Sgt. Jones heard our medic R. Owens hollar [sic] for
     me, Sgt. Jones that there was a fight in L-2. Deputy
     Harris being in front of the booking desk was the first
     to respond.    Upon opening the door to L-2, Deputy P.
     Harris found inmate Roy Moody on his hands and knees bent
     over with his hands on his head.

          After getting coverage at the 4th floor desk I, Sgt.
     Jones went upstairs and entered L-2. I found inmate Roy
     Moody standing in the corner of the day room. All of L-2
     started saying that R. Moody was having a bad dream.

          After looking at R. Moody I noticed he had some
     redness around the left eye. I pulled R. Moody out of L-
     2 and asked him what happened. He said that David Earl
     Gibbs had hit him and tried to choke him....I Sgt. Jones
     seen [sic] what appeared to be red marks around R.
     Moody’s throat and found redness around his left eye. I
     asked R. Moody if he wanted to press charges.

                                 -3-

            The state called six witnesses in the punishment phase,

including Moody.   The witnesses testified that Gibbs bragged about


                                  7
fights he had been in; spent most of his teenage years and adult

life in foster homes, jails, and prisons; had observed his mother

having sexual relations with another woman; and had attempted

suicide. There was testimony that Gibbs was not violent when sober

and liked prison life. Charlie Thomas testified that several weeks

after he fired Gibbs for stealing some checks from his business

Gibbs broke into Thomas’s apartment, found Thomas’s rifle, and

threatened to kill Thomas, although Thomas talked him out of it,

later buying him a beer.       The defense called four mitigation

witnesses,   including   co-workers   at   a   convalescent   center   who

testified that Gibbs was a good worker and well-mannered. A social

worker testified that Gibbs confided in her that his mother had

taught him to rob and steal as a young boy; that he got along well

in a half-way house such that she let him stay with her family on

occasion.

     This summary of the range of evidence before the jury in the

punishment phase of trial affords context for judging the failure

to disclose the record with the notation of dismissal.          We begin

and end with the question of materiality.           Gibbs fashions his

argument upon a base that will not support it.        The contention is

that the notation on the record was information withheld from

Gibbs.   Whether or not Gibbs knew of the notation on the record,

and there is no evidence that he did, he certainly knew if he had

been disciplined for the incident. His counsel’s cross examination

never touched self defense and never asked if Gibbs had been

                                  8
disciplined by jail authorities, a fact, if true, also known by

Gibbs.

     Significantly, the state did not rely upon a judgment of

conviction    or    other   paper    record         to   prove   prior   misconduct.

Rather, the state relied upon the testimony of the victim offered

at trial and subject to cross examination by the defendant. The

contention is that Gibbs could have used the notation on the

records to challenge Moody’s version of the fight. But without

Gibbs’s supporting testimony or some explanation of what the

notation meant its value was equivocal at best.                    The notation is

undated and unsigned.         The state trial judge found in collateral

proceedings that the prosecutors who tried the case were unaware of

the notation.      It was not until June, 1995, nearly ten years later,

that it was found, apparently by Gibbs’s habeas counsel.

     Gibbs never asserted at trial that he acted in self defense.

Indeed, he has yet to do so.          Gibbs knew as well as anyone if he

acted in self defense and knew, as we have observed, that no

disciplinary action was even taken against him, if that was the

case.    And he knew that disciplinary procedures had been initiated

because he signed the notice of charges.                     Given its equivocal

meaning, the       notation   in    hand       at   trial   unsupported    by   other

evidence would be of little assistance, and that is the only

arguably exculpatory evidence not disclosed to him. If he had not

acted in self defense and the notation was inaccurate, offering it

into evidence also would have put the disciplinary proceedings in

                                           9
play, entailing the risk of correcting proof. Finally, the balance

of the report detailed the contemporaneous complaint of Moody.   It

supports his trial testimony.     This prior consistent statement

would have been admissible on the offer of the state to rebut an

implication of recent fabrication.    The contemporaneous complaint

might have been admitted on some other ground.     It surely would

have, had the defense attempted to make use of the notation of

dismissal.   The point is that in judging the materiality of the

notation we cannot ignore the cross-cutting price of its use by the

defense.



                                III

     Gibbs’s second claim also points to the incident involving

Moody, contending that the state relied upon inaccurate evidence of

a prior offense in violation of the Eight Amendment, a principle

announced in Johnson v. Mississippi, 

(1988). In

Johnson the Supreme Court vacated Johnson’s conviction because the

state had relied upon a prior conviction of first-degree rape

reversed after Johnson’s capital trial.

     We are not persuaded.   In Johnson the invalidated conviction

was the sole evidence of the prior conduct.   The court in Johnson

emphasized that because the prosecutor relied upon a judgment of

conviction to prove the prior acts, the reversal took away the

prosecutor’s evidence.   The evidence of Gibbs’s prior acts was the

testimony at trial of the victim.

                                10
                                      IV

       Gibbs contends that state and federal courts refused to allow

discovery in support of his habeas petitions contrary to principles

announced in Bracy v. Gramley, 

(1997).            Bracy did

not lower the gate to discovery in habeas cases.          Rather, the Court

applied the standards of Harris v. Nelson, 

(1969),

that “where specific allegations before the court show reason to

believe that the petitioner may, if the facts are fully developed,

be able to demonstrate that he is...entitled to relief, it is the

duty   of   the   courts   to   provide    the   necessary   facilities   and

procedures for an adequate inquiry.”              

,

quoted in 

.             Rule 6[a], Rules Governing

Sec. 2254 Cases requires a demonstration of ‘good cause.’ Harris

led to the adoption of Rule 6, and the rule was meant to be

consistent with it, as Chief Justice Rehnquist pointed out in

Bracy.      

       He also accented that Bracy had made

“specific allegations” and that the “scope and extent of                  such

discovery is a matter confided to the discretion of the District

Court.”     

discovery would develop evidence supporting

claims that the state withheld evidence regarding the background of

Texas Ranger Wesley Styles and that his lawyer was ineffective in

not investigating Styles’ background. Ranger Styles questioned

Gibbs on several occasions and testified at a suppression hearing

regarding Gibbs’s confession.        Gibbs testified at the suppression

                                     11
hearing     about    threats,     intimidation,        physical      abuse,     and

psychological coercion Styles is said to have used, including a

promise that he would not pursue capital murder charges if Gibbs

confessed.

     First, with regard to the claim that discovery was needed to

develop a possible claim that the government withheld exculpatory

information regarding Ranger Styles, we are pointed to no non-

public information or type of information directly relevant to the

testimony      of   Styles.     His    asserted     misconduct         in     other

investigations was widely reported in the press. Regardless, Gibbs

failed    to   explain   the    materiality    to   his   case    of   any     such

information.

     The state habeas court held that specific instances of Styles'

alleged misconduct were inadmissible under Texas law. As a federal

court in a habeas review of a state court conviction, we cannot

review state rulings on state law that do not present a federal

constitutional      question.    And   the   nuances    of   state     rules   for

impeaching a witness by prior acts of misconduct do not do so.

     Gibbs had the full opportunity to cross examine Styles at the

suppression hearing.      As for a possible claim that Gibbs’s counsel

was ineffective, his defense counsel asserted in affidavits that

they knew of allegations concerning Styles in the Brandley case [a

widely reported case of a prisoner ultimately released from the

Texas prison system], but any misconduct would not have been

admissible.

                                       12
     Gibbs’s claim ultimately rests on an expansive reading of

Bracy that we cannot embrace.      He argues that it is no answer that

the discovery venture rests on speculation, because the purpose of

discovery is just that -- to discover.      The argument continues that

while reports about Ranger Styles were public, the defense needed

to nail down witnesses and documents for trial.              To what end,

however, Gibbs does not fully answer. The best offered explanation

is a possible development of opinion testimony regarding reputation

for truthfulness or evidence that Styles was guilty of misconduct

in other cases. That speculation about evidence found by the state

court to be likely inadmissible is not enough – at least not for us

to find an abuse of discretion.     In sum, we agree with the district

court   that   Gibbs   did   not   make   the   kind   of   particularized

allegations or showing demanded by Bracy.         This judgment call by

the district court falls well within its discretion, given the

deference it is due.

     We vacate the stay of execution.            The application for a

certificate of probable cause is denied.




                                    13