David Earl Gibbs was convicted and sentenced to death for the July
1985 murder of 29 year-old Marietta Bryant. Gibbs raped and murdered
Bryant and her roommate, Carol Ackland.
Gibbs worked and lived at the Conroe, Texas apartment complex where
Bryant and Ackland lived. Both women were outpatients of the Texas
Department of Mental Health and Mental Retardation.
Gibbs confessed after his fingerprints were found at the scene and
human blood found on his boots. In his statement, Gibbs stated:"While
I was having sex with her, I cut her throat. I don't know why I did
Next, he raped Bryant and slashed her throat with a butcher knife,
and ransacked the place to make it look like the women were killed
in a burglary.
Gibbs was previously convicted of theft robbery and burglary, and on
parole after arly release at the time of the murders.
In 1990, while in jail for Ms. Bryant's rape and murder, Gibbs was
also convicted of voluntary manslaughter for killing another death
row inmate, Calvin Williams. Gibbs received a 20 year sentence for
Texas Attorney General
David Earl Gibbs Scheduled to be
AUSTIN - Texas Attorney General John Cornyn
offers the following information on David Earl Gibbs who is
scheduled to be executed after 6 p.m., Wednesday, August 23:
David Earl Gibbs was convicted and sentenced to
death for the July 1985 murder of 29 year-old Marietta Bryant. Gibbs
raped and murdered Bryant and her roommate, Carol Ackland.
Gibbs worked and lived at the Conroe, Texas
apartment complex where Bryant and Ackland lived. Both women were
outpatients of the Texas Department of Mental Health and Mental
Retardation (MHMR). The MHMR caseworker assigned to Bryant and
Ackland alerted police after he had been informed that neither of
the women had shown up at work for several days.
When police, the caseworker and family members of
Bryant arrived at the women's apartment, they found Bryant and
Ackland dead inside. Their bodies were in an advanced stage of
decomposition. Both women's throats were cut. Forensic evidence
connected Gibbs to the murders and he was arrested soon thereafter.
Gibbs was arrested after police searched his
apartment and found a pack of cigarettes that were the same brand as
the cigarette butt found at the murder scene. Police went to the
residence of Wanda McNeil, a friend of Gibbs. There they found a
radio that belonged to Bryant.
Gibbs gave a written statement to police
admitting to the rape and murder of Marietta Bryant and her roommate
Carol Ackland. Gibbs' fingerprints were found on the inside of the
front entrance of the door to Bryant and Ackland's apartment. His
fingerprints were also found on a band-aid box taken from the crime
scene. Police found a pair of boots in Gibbs' apartment with human
blood on them.
Police interviewed a friend of Gibbs who had been
with him the night of the murders. Gibbs' friend told police that
Gibbs was wearing boots that night and that Gibbs left the bar
around midnight. The friend told police that when Gibbs returned, he
was wearing different clothes and shoes.
June 19, 1991- Texas Court of Criminal Appeals
affirmed Gibbs' conviction and death sentence.
Feb. 12, 1992 - Supreme Court denied his petition for writ of
Mar. 16, 1992 - Trial court set an execution date of April 20, 1992.
April 16, 1992 - Gibbs filed his first application for state writ of
April 16, 1992 - The trial court modified Gibbs' execution date to
June 2, 1992.
May 27, 1992 - Trial court stayed Gibbs' execution pending
resolution of state habeas.
Aug. 1, 1994 - Trial court recommends that relief be denied.
Oct. 12, 1994 - Court of Criminal Appeals denied relief by written
Jan. 17, 1995 - Trial court set Gibbs' execution date for July 18,
July 5, 1995 - Gibbs files his second state habeas application.
July 14, 1995 - Trial court recommends that relief be denied.
July 15, 1995 - Court of Criminal Appeals denied relief and denied
stay of execution.
July 17, 1995 - Gibbs filed a federal petition for writ of habeas
corpus. Execution stayed.
May 15, 1997 - District court entered final judgment denying habeas
July 29, 1997 - District court denied permission to appeal.
Sept. 8, 1998 - Fifth Circuit Court of Appeals denied permission to
Jan. 25, 1999 - Gibbs filed a petition for writ of certiorari in the
Supreme Court which was denied on
April 26, 1999. Gibbs then filed his third state habeas application.
April 5, 1999 - Court of Criminal Appeals found that the application
was properly filed and remanded to the trial court. The trial court
held an evidentiary hearing and recommended on Feb. 8, 2000 that
relief be denied.
April 5, 2000 - Court of Appeals denied Gibbs' subsequent habeas
application as abuse of writ.
July 5, 2000 - Gibbs filed a petition for writ of certiorari in the
Supreme Court. Gibbs also sought permission to file a second federal
habeas writ from the Fifth Circuit on June 28, 2000. Both cases are
Gibbs was previously convicted of theft of a
motor vehicle, auto theft, robbery and burglary. He was jailed in
Michigan for the theft of a motor vehicle charge and was jailed in
Texas for the robbery conviction.
In 1990, while in jail for Ms. Bryant's rape and
murder, Gibbs was also convicted of voluntary manslaughter for
killing another death row inmate. Gibbs received a 20 year sentence
for that homicide.
David Earl Gibbs is on death row for the July 1,
1985, slayings of Marietta Bryant, 29, and Carol Ackland, 46, in
Conroe. The women's throats were cut by a butcher knife.
Fingerprints linked Gibbs, a maintenance worker at the women's
apartment complex, to the crime.
Gibbs later pleaded guilty to killing black death
row inmate Calvin Williams, 30, whom Gibbs said he strangled in a
recreation yard as an "initiation hit" into a racist prison gang.
These murders were committed a year and a half
after Gibbs was paroled after serving only nine months of a five
year sentence for robbery and theft.
David Earl Gibbs
David Earl Gibbs, 39, was executed by
lethal injection on Wednesday, 23 August, in Huntsville, Texas, for
the murder of two mentally ill women in their apartment.
In July 1985, Gibbs, then 24, barged into the
Conroe apartment of Marietta Bryant, 29, and Carol Ackland, 46. Both
women had mental and emotional health problems and had recently been
released from a mental hospital.
Bryant was depicted in court testimony as having
the emotional maturity of an adolescent. Some reports say that Gibbs,
who lived in the same apartment complex, was a nursing aide who
worked with mentally ill people. By other reports, he was employed
as a maintenance man at the apartments.
Gibbs got into an argument with Ackland and
forced her to have sex with him. Then, in the words of his written
statement to police, "While I was having sex with her, I cut her
throat. I don't know why I did it." Next, he raped Bryant and
slashed her throat with a butcher knife, and ransacked the place to
make it look like the women were killed in a burglary.
The women's bodies were discovered two weeks
later by their caseworker, who went to the apartment after becoming
concerned that they had not reported to their jobs.
Gibbs' fingerprints were found on the entrance
the apartment,as well as inside. Police searched Gibbs' apartment
and found a pack of cigarettes that matched the brand of a butt
found at the murder scene. A radio belonging to one of the dead
women was found at Gibbs' girlfirend's home.
Gibbs was arrested at the home of a friend in
Cleveland, Texas a month after the killings, and gave police a
voluntary statement. He was found guilty of killing Marietta Bryant
and sent to death row without being tried for killing Carol Ackland.
Gibbs had been in prison in Michigan from 1978 to
1980 for auto theft. In March 1981, he began serving three years of
a five-year sentence in Texas for robbery and theft. He was paroled
in January 1984.
In an interview several years ago, Gibbs
described himself as a "country gentleman." "This is a blow to
everything I believe in," he said. "I don't believe in hitting women.
But for me to turn around and rape and murder two women ... the
point is, I did it."
In 1990, Gibbs was involved in the death of a
fellow death-row inmate. Calvin Williams was strangled with a rope
in a recreation yard. Gibbs told investigators he helped Williams
commit suicide. One report says he was found guilty of voluntary
manslaughter; another says he pleaded guilty to involuntary
manslaughter. In any case, he received another 20-year sentence.
At his execution, Gibbs told Mickey Bryant,
Marietta's brother, "I have wronged you and your family, and for
that I am truly sorry. I forgive and have been forgiven." He was
pronounced dead at 6:18 p.m.
Afterwards, Mickey Bryant told a reporter, "the
apology doesn't cover the crime that he committed. He needed to die
for that crime. But, I did appreciate the statement and the fact
that in his mind, he has been forgiven as best as I understood it
and I hope that's the case.
The Lord will judge in the end, and
whether or not he truly repented as was forgiven, in my mind, he
paid the price he needed to pay. I guess if I was a vindictive
person, I would think that he should die in the way that he murdered
Marietta ... (but) we live in a humane society and that's the humane
way to do it."
David Earl Gibbs
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,
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.
The Texas Court of Criminal Appeals affirmed
Gibbs's conviction and sentence on direct appeal, Gibbs v. State,
819 S.W.2d 821 (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,
Former Nursing Aide Set to Die for Rape-Slayings
By Michael Graczyk -
HUNTSVILLE, Texas (AP) — Convicted killer David
Earl Gibbs headed to the Texas death chamber Wednesday evening for
raping and slitting the throat of a Conroe woman, slain along with
her roommate 15 years ago.
Prosecutors described him as a cold, cunning
killer who smoked a cigarette over one of the bodies. Police called
the rampage one of the worst crimes in Conroe's history. Marietta
Bryant, 29, and her roommate, Carol Ackland, 46, were killed in
similar fashion July 1, 1985.
Gibbs, 39, was condemned for the Bryant murder
and was not tried for Ackland's death. Both women had been released
recently from hospitals after treatment for mental health and
Court documents describe Bryant of having the
maturity of an adolescent. They lived in the same apartment complex
as Gibbs, who worked as a nursing aide with mentally ill people.
While on death row, Gibbs pleaded guilty to involuntary manslaughter
and picked up an additional 20-year sentence for killing another
Gibbs would be the 31st Texas prisoner put to
death this year, the fifth this month and second in as many days.
The U.S. Supreme Court rejected Gibbs' final appeals Wednesday
Another convicted murderer, Richard Wayne Jones,
was executed Tuesday evening for the abduction and stabbing death of
Tammy Livingston, a 27-year-old Tarrant County woman, 14 years ago.
Neither of the executions attracted the attention
given to condemned killer Gary Graham, whose claims of innocence and
an unfair trial put the focus on Texas as the nation's most active
capital punishment state and support of the death penalty by Gov.
George W. Bush, now the Republican presidential nominee.
The women's caseworker, concerned after they had
not reported for their jobs on a highway litter cleanup crew, went
to their apartment and discovered the bodies nearly two weeks after
they had been killed.
Gibbs was arrested after police searched his
apartment and found a pack of cigarettes that matched the brand of a
cigarette butt found at the murder scene. His fingerprints also were
found at the victims' apartment and a radio belonging to one of the
dead women was discovered at the home of Gibbs' girlfriend.
After his arrest, he gave police a statement
acknowledging barging into the apartment, getting into an argument
and forcing Ackland to have sex with him. “While I was having sex
with her, I cut her throat,” he wrote. “I don't know why I did it.”
Then he killed Bryant, he said, and ransacked the
place to make it look like a burglary had occurred. “This is a blow
to everything I believe in,” Gibbs, who declined to speak with
reporters in the weeks leading up to his execution date, said in an
interview with The Associated Press several years ago. “I don't
believe in hitting women. But for me to turn around and rape and
murder two women ... The point is I did it. “We can blame it on my
past, but that doesn't take away what I did,” said Gibbs, who
described himself as a “country gentleman.”
After his release from a Michigan prison in 1980
on a two-year sentence for auto theft, the 10th-grade dropout from
Florida was sentenced the following year in Texas for robbery and
theft in Galveston County.
He was freed after serving less than
three years of a five-year term. In the prison slaying, death row
inmate Calvin Williams was strangled with a rope in a recreation
yard in 1990.
At least eight other prisoners have execution
dates through the end of the year, including Jeffrey Caldwell, set
to die Aug. 30 for the 1988 hammer slayings of his father, mother
and sister at their home in Dallas. If all nine, including Gibbs,
are put to death, the number of executions this year would top the
record 37 that were carried in 1997.
154 F.3d 253
David Earl GIBBS,
Gary JOHNSON, Warden, Director, Texas Department of Criminal
Justice Institutional Division, Respondent-Appellee.
United States Court of Appeals,
Sept. 8, 1998.
Appeal from the United States
District Court for the Southern District of Texas.
Before KING, HIGGINBOTHAM and
DAVIS, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit
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.
* The Texas Court of Criminal
Appeals affirmed Gibbs's conviction and sentence on direct
appeal, Gibbs v. State, 819 S.W.2d 821 (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,
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, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090
(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.
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, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(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, 473 U.S. 667, 676, 105 S.Ct. 3375,
87 L.Ed.2d 481 (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 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, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342
(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, 514
U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (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." Agurs, 427 U.S. at 109-10, 96 S.Ct.
2392. 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, 120 F.3d
551 (5th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1061,
140 L.Ed.2d 122 (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, 92 F.3d 1385, 1399 (5th Cir.1996), cert. denied, ---
U.S. ----, 117 S.Ct. 1847, 137 L.Ed.2d 1050 (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, 632 F.2d 478, 481 (5th
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
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
Q: Around that time anyway?
Q: Had you done anything other
than unplug the radio?
Q: Had you and he ever had any
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?
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:
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.
The state called six witnesses
in the punishment phase, including Moody. The witnesses
testified that Gibbs bragged about 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
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
disciplined by jail authorities, a fact, if true, also known by
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 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.
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, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d
575 (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
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, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997).
Bracy did not lower the gate to discovery in habeas cases.
Rather, the Court applied the standards of Harris v. Nelson, 394
U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (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." Harris, 394 U.S. at 299, 89
S.Ct. 1082, quoted in Bracy, 520 U.S. at ----, 117 S.Ct. at
1799. 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. Id. at ----, 117
S.Ct. at 1799. 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." Id.
Gibbs hoped 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 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.
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