Ford v. Dretke

1Pursuant to 5TH CIRCUIT RULE 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
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United States Court of Appeals
Fifth Circuit
F I L E D
January 5, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 04-70018
_____________________
TONY EGBUNA FORD,
Petitioner - Appellant,
versus
DOUG DRETKE, Director,
Texas Department of Justice,
Correctional Institutions Division,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
District Cause No. 01-CV-386
_________________________________________________________________
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM.1
Tony Egbuna Ford was convicted of capital murder and
sentenced to death. Ford seeks a certificate of appealability
(COA) to appeal the district court’s denial of federal habeas
relief for five claims. After considering Ford’s request, the
court GRANTS Ford a COA on the following issues: (1) whether the
district court erred in determining that Ford’s trial counsel
provided effective assistance in advocating his request for the

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appointment of an expert in eyewitness identification, (2)
whether the district court erred in determining that Ford was not
entitled to an eyewitness identification expert, and (3) whether
the district court erred in determining that Ford’s appellate
counsel was effective despite his failure to raise a due process
claim based on the trial court’s failure to appoint Ford an
expert.
The court DENIES a COA for Ford’s claim that he was entitled
to an evidentiary hearing to develop his claim that the police
identification process was unconstitutionally suggestive. Ford
had an opportunity to develop the factual basis of his claim
about the identification process. Although Ford did not have the
assistance of an expert, the state trial judge conducted an
evidentiary hearing on Ford’s motion to suppress. During that
hearing, Ford’s attorneys demonstrated the problems with the
photo spread. Even if the photo spread was suggestive, the
jury’s verdict resulted from in-court identifications, not out-
of-court identifications using the photo spread. Ford has not
made a substantial showing of the denial of a constitutional
right.
The court also DENIES Ford a COA on his claim that the
district court erred by denying his request for discovery to
develop a Brady claim. The new evidence Ford relies upon is too
speculative to undermine confidence in the jury’s verdict. Even

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if the prosecutor had the information that Ford seeks discovery
about, there is no reasonable probability the result of the
proceeding would have been different. The district court did not
abuse its discretion in denying Ford’s request for discovery.
With this matter resolved, the court ORDERS the clerk to set
this appeal for oral argument. Although no further briefing is
required, the court will accept additional briefing if the
parties request leave of court.
REQUEST FOR CERTIFICATE OF APPEALABILITY GRANTED IN PART & DENIED
IN PART.

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