United States v. Webster

United States Court of Appeals
Fifth Circuit
F I L E D
December 7, 2004
Charles R. Fulbruge III
Clerk
REVISED DECEMBER 8, 2004
In the
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,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Bruce Webster requests a certificate of ap-
pealability (“COA”) for issues the district
court, which granted a COA on two issues,
deemed unworthy of collateral review. Be-
cause Webster has failed to make a substantial
showing of the denial of a constitutional right,
we deny his application.
I.
In 1996, a federal jury convicted Webster

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

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

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

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

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6
These witnesses recounted graphic and violent
stories of sexual abuse; weekly beatings with
hoses, fan belts, and extension cords; and vari-
ous other forms of torture, including electric
shock and burning. Even further, counsel pre-
sented testimony from an officer of the juve-
nile court in Arkansas that removed one of
Webster’s siblings from the home because of
abuse.
In light of this substantial body of evidence
and the pre-trial investigation its presentation
required, Webster’s generalized allegation that
more evidence of mental retardation and child
abuse should have been presented is arguably
frivolous. In any event, it is insufficient to
demonstrate objectively deficient performance
by counsel.11 Because Webster has failed to
make the requisite showing of deficient per-
formance, we need not address the prejudice
portion of the Washington inquiry.12 We deny
a COA on this ineffective assistance claim.
2.
Webster faults his trial counsel for failing to
investigate and present evidence of racial
discrimination allegedly existing in the district
where he attended school. Webster claims it is
vitally important for counsel to demonstrate
that the reason he was not enrolled in special
education courses was the district’s racially
discriminatory practice of not placing black
students in such courses even when necessary,
and not because he did not qualify. Had such
evidence been presented, Webster contends, it
would have effectively countered the govern-
ment’s assertion that he is not mentally re-
tarded.
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
with Webster about the salience of the evi-
dence. First, the court observed that the gov-
ernment disputed Webster’s claim of mental
retardation primarily through the testimony of
its medical experts, cross-examination of
11 See, e.g., Dowthitt v. Johnson, 230 F.3d 733,
743 (5th Cir. 2000) (stating that the deferential
review mandated by Washington requires courts to
be “particularly wary” of claims that counsel failed
to present “enough” evidence on a certain issue);
Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir.
1999) (“Did counsel investigate enough? Did
counsel present enough mitigating evidence?
Those questions are even less susceptible to judi-
cial second-guessing.”); Prejean v. State, 889 F.2d
1391, 1398–99 (5th Cir. 1990) (“Although it is
possible that [trial counsel] could have produced
more of the same type of [mental capacity] evi-
dence . . . such detail is not required by [Washing-
ton].”); see also Wilson v. Ozmint, 352 F.3d 847,
861–62 (4th Cir. 2003) (finding counsel’s decision
not to present additional mitigating evidence rea-
sonable in light of counsel’s belief that “their best
mitigation evidence had been presented,” and “that
the additional evidence would only have detracted
from the power of the mitigation evidence that they
had already presented”).
12 See, e.g., Dowthitt, 230 F.3d at 745 (assum-
ing, arguendo, deficient performance and rejecting
ineffective assistance claim on prejudice grounds)
(citing Buxton v. Lynaugh, 879 F.2d 140, 142 (5th
Cir. 1989) (“[Washington] allows the habeas court
to look at either prong first; if either one is found
dispositive, it is not necessary to address the
other.”)); Murray v. Magio, 736 F.2d 279, 282
(5th Cir. 1984) (“[I]n addressing [an ineffective
assistance] claim, we need not approach the inquiry
in any particular order or even address both stages
of the inquiry if an insufficient showing is made as
to one. A claim may be disposed of for either
reasonable performance of counsel or lack of
prejudice, without addressing the other.”).

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

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

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9
This dearth of authority persists even today;
no statutory amendment or judicial decision
has addressed whether the mental retardation
finding envisioned by § 3596(c) is a question
for the court or the jury. Moreover, even if
there were a subsequent legal development
holding that the jury is the fact-finder required
by § 3596(c), the admonition to reviewing
courts to “eliminate the distorting effects of
hindsight . . . and to evaluate the conduct from
counsel’s perspective at the time,” Washing-
ton, 466 U.S. at 689, would render Webster’s
claim meritless.19
It follows, then, that counsel cannot be
deemed constitutionally ineffective for failing
to anticipate a “subsequent development,” and
Webster cannot rely on the failure to object as
a basis for showing deficient performance.
Reasonable jurists cannot disagree with the
district court’s conclusion that counsel were
not constitutionally ineffective. We deny a
COA on this ineffective assistance claim.
D.
Webster seeks a COA on his claim that the
prosecution withheld impeachment evidence in
contravention of its due process obligation
under Brady v. Maryland, 373 U.S. 83 (1963),
and its progeny. The evidence allegedly with-
held is the same material Webster faults his
trial counsel for not investigating and present-
ing to the jury: alleged racial discrimination in
the district where Webster attended school and
specific evidence of the district’s discrimina-
tory practice of failing to place black students
in special education classes when necessary.
As with his ineffective assistance claim, Web-
ster maintains that disclosure of this evidence
would have provided a basis for impeaching
government witnesses who testified that he
was not mentally retarded and who noted the
fact that he was not enrolled in special educa-
tion classes.
The right to due process is violated where,
on request, the government conceals evidence
(exculpatory as well as impeachment) that is
favorable to the defendant and material to
guilt or innocence, irrespective of the good
faith of the prosecution. See id. at 87–88;
United States v. Bagley, 473 U.S. 667, 676
(1985); United States v. Ellender, 947 F.2d
748, 756 (5th Cir. 1991). “[E]vidence is mate-
rial only if there is a reasonable probability
that, had the evidence been disclosed to the
defense, the result of the proceeding would
have been different. A ‘reasonable probability’
is a probability sufficient to undermine confi-
dence in the outcome.” Bagley, 473 U.S. at
682.
18(...continued)
cannot form basis of ineffective assistance claim).
19 See, e.g., Lucas, 132 F.3d at 1078-79 (reject-
ing claim of deficient counsel performance “be-
cause counsel is not required to anticipate subse-
quent developments in the law”); Organ v. Cock-
rell, 297 F.3d 349, 360–61 (5th Cir. 2002) (hold-
ing that failure to object to supplemental mitigating
evidence instruction was not deficient performance
before the issuance of Penry v. Johnson, 532 U.S.
782 (2001)); Clark v. Collins, 19 F.3d 959, 965-
66 (5th Cir. 1994) (rejecting claim of deficient
performance for failure to object to racially-moti-
vated peremptory strikes before issuance of Batson
v. Kentucky, 476 U.S. 79 (1986)); Wiley v. Puck-
ett, 969 F.2d 86, 102 (5th Cir. 1992) (same); Gray
v. Lucas, 677 F.2d 1086, 1096 n.9 (5th Cir. 1982)
(holding that failure to object to prosecutor’s
interjection of future dangerousness through expert
testimony did not constitute deficient performance
in advance of caselaw discrediting such testimony);
see also United States v. Kleinbart, 27 F.3d 586,
593 (D.C. Cir. 1994) (holding that failure to
appeal jury instruction did not constitute ineffective
assistance “[g]iven the unclear state of the law”).

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

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

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12
theless proceeded to consider and reject it on
the merits.
Webster may not, however, raise this issue
for the first time on collateral review without
showing both “cause” for his procedural de-
fault and “actual prejudice” resulting from the
error. See, e.g., United States v. Shaid, 937
F.2d 228, 232 (5th Cir. 1991) (en banc). He
has neither alleged nor shown cause and pre-
judice, so this claim cannot form the basis of a
substantial showing of the denial of a constitu-
tional right. We deny a COA on this issue.
F.
Webster avers that the death sentence was
applied in his case as a result of a “systematic
pattern of racial discrimination” on the part of
the government in violation of the Fifth and
Eighth Amendments. This claim was raised
and rejected on direct appeal.26 Attempting to
breathe new life into it on collateral review,
Webster relies on new statistical evidence
compiled by the Department of Justice.27
Finding that those statistics are identical to
those held insufficient to state a prima facie
case of selective prosecution in United States
v. Jones, 287 F.3d 325, 332-35 (5th Cir.
2002), the district court rejected this claim.
We agree that the statistics are wholly in-
sufficient to meet the threshold requirement
that Webster was singled out in the capital
charging decision on the basis of his race, but
that others similarly situated were not. De-
spite citing to new statistical data, Webster has
done no more than repeat his claim of error re-
jected on direct appeal. Because he has failed
to make the requisite showing of the denial of
a constitutional right, we deny a COA on this
issue.
G.
Webster contends that his due process
rights were violated by the presentation of
“perjured and damaging testimony” from co-
defendants Steven Beckley and Marvin Hollo-
way. He alleges that two post-trial events pro-
vide a basis for this claim: first, that Beckley
told a correctional officer and an inmate that
he had lied at Webster’s trial in an effort to im-
prove his standing with the government; and
second, that Orlando Hall, another co-defen-
dant, received a letter from Holloway stating
that he owed Webster an apologySSa state-
ment Webster cites as evidence that Holloway
lied at trial.
25(...continued)
18 U.S.C. § 3593(b), which provides that the court
will act as a fact-finder “upon the motion of the de-
fendant and with the approval of the attorney for
the government.” He asserted that this provision
precluded any fact-finding by the court absent the
defendant’s motion. See Webster, 162 F.3d at
351-52.
26 Webster argued on direct appeal that the dis-
trict court erred by denying his motion (which was
based on alleged racial discrimination in the charg-
ing decision) to dismiss the government’s notice to
seek the death penalty. In rejecting this claim, we
concluded that Webster had failed to make the
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
objective circumstances of the crime and the
sufficiency and availability of evidence to the prove
the elements required constituted proper and legiti-
mate non-discriminatory grounds for seeking the
(continued...)
26(...continued)
death penalty. See id. at 333-35.
27 See DEP’T OF JUSTICE: THE FEDERAL DEATH
PENALTY SYSTEM: A STATISTICAL SURVEY
1988–2000 (2000).

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

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14
232. We deny a COA on this issue.
I.
Webster seeks a COA regarding the district
court’s denial of his request for discovery.30
He claims that the court abused its discretion
in denying discovery, thereby violating his due
process rights.
A habeas petitioner may “invoke the pro-
cess of discovery available under the Federal
Rules of Civil Procedure if, and to the extent
that, the judge in the exercise of his discretion
and for good cause shown grants leave to do
so, but not otherwise.” Rector v. Johnson,
120 F.3d 551, 562 (5th Cir. 1997) (citing
Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir.
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
merely claims error in the denial of discovery
and lists the thirteen grounds for relief on
which he seeks to engage in discovery. His
application thus reflects a desire to use the ha-
beas corpus discovery mechanism to explore
his case “in search of its existence.” Id. (quot-
ing Aubet v. Maine, 431 F.2d 688, 689 (1st
Cir. 1970)). This court does not, however,
“sanction fishing expeditions based on peti-
tioner’s conclusory allegations.” Rector, 120
F.3d at 562 (citing Perillo, 79 F.3d at 444).
Because Webster has failed to identify, with
specific allegations, any dispositive factual dis-
putes, we deny a COA on this issue.
The application to extend the COA issued
by the district court is in all respects DENIED.
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
had stated a specific factual disputeSSwhether her
attorney represented another person involved in the
charged crime, and therefore had a conflict of
interestSSwhich, if resolved in her favor, would
(continued...)
31(...continued)
entitle her to relief), with Rector, 120 F.3d at 562
(affirming denial of discovery request where ha-
beas petitioner had “failed to make at least a prima
facie showing of what specifically he intends to
prove”).

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