LampOfHope.org

Background:

On April 30, 1984 in Longview Texas, Jerry and Brenda Morgan and their 18-month-old son, Devin, were murdered in their home. Jerry is shot 4 times, Brenda is shot once and Devin is shot twice. The motive for the murders was never determined. Though police and the DA's office apparently tried to link the killings to drug activities during the trials, the Morgans were, by all accounts, law-abiding, decent, hard-working average people with no connections to criminal activity. Nothing of any value was stolen from the house. The only missing items appear to be handguns and rifles from a gun case, some small electronics and housewares and a heart-shaped necklace of Brenda Morgan's.

The Morgan's car was taken and found the next morning thirty miles away in Tyler, Texas. No murder weapon was found and no suspect fingerprints were found at the scene or in the car. The minimal forensic evidence recovered from the scene consisted of African-American hairs found on a towel under Brenda Morgan's head, assorted African-American hairs from vacuumings and some latent fingerprints (none of which could be connected to the suspects, including Wilson and Alvin and Cynthia Kelly). Unfortunately, DNA technology in the 1980's was relatively new and unsophisticated and no comparative testing or data bank comparison was done on the African American hairs from the scene. However, with the passage of the new DNA testing law in Texas, the test could be done now. No motive meant there were no readily identifiable suspects and the investigation into the murders quickly went cold.

In the winter of 1985, Roy Bean, a property crimes detective with the Longview Police Department arrested Cynthia Mae Kelly and her husband, Alvin Kelly, for outstanding warrants. Since the investigation into the Morgan murders was still active, all police personnel were asked to pursue information about the case with all suspects. Cynthia apparently volunteered information about her involvement in the murder of the Kellys' roommate, John Ford. During this interview with Bean, Cynthia also said she had information about the Morgan murders.

He turned this information over to the two Longview homicide detectives in charge of the Morgan investigation. Neither homicide detective talked to or interviewed Cynthia after receiving the arresting Bean's information. Cynthia continued to contact Bean at his office while she was in jail for outstanding warrants, asking if she could get an offer of immunity in the Ford case for information she claimed to have in the Morgan case. However , Bean did not have the authority to promise her immunity. These contacts continued and at no time did she mention Ronnie Lee Wilson. Bean also spoke with the first assistant district attorney shortly after Cynthia's arrest and told the ADA about Cynthia's knowledge of the Morgan murders, which also implicated Alvin. Though Bean said he does not know whether the ADA made a deal with Cynthia, he notes that shortly after he gave the information to the ADA, Cynthia was released from jail and went to stay with relatives in Michigan. Bean continued to receive calls from Cynthia and her boyfriend about the immunity issue. The conversations occurred through 1986. All interviews and calls were taped per Longview Police Department Criminal Investigation Division policy. Nothing of note occurred in the Morgan murder investigation until six years later, 1990, when Cynthia suddenly came forward under questionable circumstances to give a statement about her "knowledge” of the crime. Subsequently, her husband Alvin and Wilson were charged with the Morgan murders. Though Bean garnered extensive information about the case from his conversations with Cynthia, he was never called to testify in either trial or contacted by the police or DA's office about the information he had. Worse yet, the prosecution suppressed this critical information and neither Wilson nor his defense attorney saw it until 1998.

Sequence of important events and conflicts:

April 30, 1984: Jerry, Brenda and Devin Morgan are murdered between 6 and 9 p.m. according to the pathologist's report. This is based on the fact that Jerry and Brenda are in their work clothes and no dinner is being or has been prepared. The Morgan's neighbor tells police she saw an African-American male drive away from the Morgan home in the Morgan's car between 7:30 and 8 p.m. (it was Daylight Saving time and light out). This lead was never followed up on. In Tyler, Texas, thirty miles from Longview, a Silverado pickup is reported stolen from Saunders Street.

May 1, 1984: Morning: the Morgan's car is found thirty miles away in Tyler, Texas. One block from the recovery site is the location from which Boswell's Silverado was stolen.

May 7, 1984: The stolen Silverado is recovered in Grand Prairie, Texas in the possession of two African American males.

May 11, 1984: Evidence taken from the truck includes: three towels, one hair, one vegetation sample and one woman's necklace, a gold chain with a flying heart on it.

May 14, 1984: Because of the coincidence of the Silverado theft just blocks from the Morgan car recovery site, an investigator shows the necklace from the stolen vehicle to Brenda Morgan's relatives, possibly believing it might have been Brenda's. Brenda's sister and father identified the necklace as Brenda's. Brenda's mother, her other sister and Jerry Morgan's mother could not positively identify the necklace.

May 15, 1984: Brenda's mother remembers that her daughter did have a necklace like the one she was shown the day before. The sister who identified the necklace as Brenda's shows the investigator a necklace she owned that was identical to the one Brenda had. The floating heart necklace does not appear in photos taken of the jewellery Brenda Morgan was wearing at the time of her autopsy (May 3, 1984). According to an affidavit from Brenda's sister, police only had possession of Brenda Morgan's rings. Brenda's necklace has not been found.

May 16, 1984: The evidence is taken to the Southwestern Institute of Forensic Sciences. The items have not yet undergone DNA testing for comparison to national data banks of known offenders, hairs found at the scene, or to Brenda Morgan to verify whether or not the necklace was hers, though they have been recently submitted for testing in Kelly's case and are waiting the results now.

Pre-trial background, 1990-92: Cynthia reappears and divulges the information she allegedly has on the case. Subsequently, Wilson and Alvin are charged with the murders. Cynthia is the prosecution's only witness. Her testimony will be the foundation of the prosecution's case. Supporting testimony (also suspect) will come from one of Alvin's brothers. There is no supporting forensic evidence or anything to link Alvin or Wilson to the crime. Cynthia still has not been charged in any way with the John Ford murder for which Alvin has received a thirty-year sentence. In 1990, prior to Cynthia's return to Texas, prosecutors visit her in Michigan to discuss her participation in the trials of Alvin and Wilson. She is brought back to Texas and gives a second statement, under close supervision of prosecutors, that includes many obvious discrepancies and untruths. During the Alvin Kelly trial, Cynthia was sequestered in a state apartment, with her sister, under close scrutiny of the state and was taking Demerol for her drug addiction (two prescriptions are filled in one week). There are serious questions about the degree to which Cynthia was a "voluntary" (and coherent) witness in the case.

Cynthia Kelly -Immunity/prosecution issues:

John Ford murder: One of Alvin's brothers signs an affidavit in 1998 that he overheard Cynthia tell his mother and his wife, that she killed John Ford. The brother relayed this information to prosecutors prior to Alvin's trial for the Morgan murders. They "seemed not to want to hear this information " .

Morgan murders:

In an affidavit, Cynthia's sister relates a conversation she had with prosecutors about Cynthia's involvement as a witness in the case. She asked whether or not Cynthia might be prosecuted or go to jail for her involvement in the crime. Prosecutors assured her Cynthia would not. In a later conversation with an investigator for the defense, again the sister says that prosecutors told her not to worry, because, even though they were not giving Cynthia immunity, they were not going to prosecute her. Cynthia confirmed this information in a conversation with her sister after Cynthia returned from giving her deposition in Texas.

Statement and Trial evidence:

September 1990: Cynthia gives a second statement about the Morgan murders to prosecutors which conflicts with her 1985 statement. The information in the statement is used at Alvin's trial and he is convicted of capital murder and sentenced to death in 1991.The same statement is used in Wilson's trial to implicate him in the crime; he is sentenced to 66 years on April 14, 1992. This second statement from Cynthia, and subsequent testimony, is rife with inconsistencies, irregularities and obvious untruths -the bulk of them concerning Wilson's involvement. Problems include: Her original statement given in 1985 did not match her deposition taken in 1990 and her deposition did not match her trial testimony at Kelly's trial in 1991. When asked about her statement at Kelly's trial she said she lied, but was allowed to carry on with testimony.

Lack of solid motive:

The prosecution wove a tenuous story about the murders being drug related. But, the Morgans were, by all accounts, law-abiding, decent, hard-working average people with no connections to drugs or other criminal activity. There is no logical reason to believe the family was killed as the result of drug activity.

Purported visit to the Morgan home:

In Cynthia Kelly's version of events (deposition hearing 1991) on the day of the murders, she, Alvin and Wilson stopped by the Morgan trailer between the hours or 3-4 p.m. Cynthia claims to have seen three cars in the driveway and people moving around inside the trailer. Cynthia claims that Wilson went up to the door, knocked and spoke calmly to a man (who she thought was Jerry Morgan) for a few moments. It is interesting to note that this placid approach to the trailer came only days after Steve Kelly claims to have witnessed the pistol whipping of Jerry Morgan by Alvin Kelly. However, according to testimony from Jerry Morgan's mother, her son and his wife were at work during those hours; she was babysitting Devin and Jerry picked the baby up sometime between 5:30, when he left work, and 5:45. Brenda got off work at 6 p.m. and stopped by a store before going home. The work hours of Jerry and Brenda were verified by investigators through records at the Morgans' employers.

Conflicts in account of post-murder activities:

Cynthia gives two versions of what happened after the murders. In one version (statement of Sept. 1990), she says that after the murders, Alvin told her to go to the truck and follow him and Wilson, who were in the Morgan car. The three drove to a wrecking yard outside longview and Alvin told Cynthia to go home. She claims she didn't see either Alvin or Wilson until the following morning (May 1) when the two men pulled into the Kelly yard with the Morgan car on a wrecker. The statement was used to indict Wilson in 1990 but was never allowed into court for the trial. In the second version (deposition hearing 11 months later, 1991), Cynthia is questioned under oath and now, rather than driving to the wrecking yard, she claims that the three drove to Tyler, Texas where they abandoned the Morgan car a block behind Mother Francis Hospital after wiping it clean of fingerprints. The three then drove to the home of Alvin's brother in Tyler. Cynthia said while she and Wilson waited in the truck, Alvin went inside and had a long conversation with his brother. Cynthia, Alvin and Wilson then supposedly drove to Waco and spent the entire day there. The second version has obviously been tailored to fit the evidence since Cynthia's initial version does not account for how the car got to Tyler. The tailored version also conveniently and smoothly brings Alvin's brother into the equation, thereby adding credence to his subsequent testimony about his knowledge of the crime and Alvin's involvement. Alvin and his brother have had an ongoing war between them most of their lives.

The mystery wrecker/tow truck:

It is also interesting to note the deletion of the wrecker/tow truck in Cynthia's second accounting of the post-murder activities. According to Cynthia, Alvin and, allegedly Wilson, were dropped at a wrecking yard after the murders and returned to the Kelly home the next morning (May 1) with the Morgan car on a wrecker. The tow truck aspect is particularly important because it directly conflicts with information in Cynthia's second statement and testimony. Had the prosecution revealed the information during the trial, Kelly's defense attorney could have tried to verify or disprove the story about the wrecker. But, this important lead could not be pursued.

Time frame inconsistencies:

Cynthia also testified that Wilson was in her presence from the morning of April 30 to noon on May 2. There are several problems with her story: First, Cynthia testifies that she, Alvin and Wilson arrived at the Morgan home at 9 p.m. But autopsy reports indicate that the victims had no food in their stomachs which strongly indicates they were killed before eating dinner that night. In addition, one of Brenda's sisters called the house sometime between 7 :30 and 8 p.m. and became concerned when she got no answer. There was also testimony from three witnesses at Wilson's trial that he was at the Good Shepherd Hospital in Longview between the hours of 2-5 p.m. on April 30 (when he is supposed to be in Rusk, Texas with the Kellys). They remembered the date well because it was the day their child had been born and they remembered Wilson visiting with his mother and his stepfather. There was also testimony from more than one person that Wilson was at his parents' home the evening and night of April 30. Yet another critical and indisputable fact thoroughly impeaches Cynthia Kelly's version of events. Cynthia claims that Wilson was in her presence from April 30 to May 2. However, on May 2 when Wilson was allegedly in Waco and Rusk with the Kellys, he received a speeding citation from the Longview Police Dept. at 2:42 p.m. (verified by an NCIC inquiry on Wilson at that time) .

False testimony about Wilson's vehicle:

At the time of the murders, Wilson drove a 1981 black and silver Chevy truck, which is verified by GMAC finance records. He was in this truck when he received his traffic citation on May 1 .However, Cynthia testified that the only vehicle she had ever seen Wilson drive was an "old, little white car" which she claims he was driving to and from the Kelly house in the April 30-May 2 time frame. This story about a white car was never pursued and the information never verified. But, the simple fact that Wilson was driving his actual vehicle, the truck, when cited for speeding again disproves Cynthia's story.

Perjury concerning official contact prior to trial:

During the trial, Cynthia perjured herself again by denying that she had ever spoken with other law enforcement officials prior to her contact with the DA's office. In 1998, Cynthia's 1985 interview/statement and numerous conversations with a Longview Police Dept. detective finally surfaced. The information came directly from the arresting detective who signed an affidavit about his interviews with Cynthia. The interviews and conversations were taped and held by the Longview Police Dept. and should have been readily accessible by the DA's office at the time of the trials.

Perjured supporting testimony:

During Alvin Kelly's trial, his brother Steve Kelly testified that the Friday prior to the Morgan murders, he went with Wilson and Alvin to a brick home in Longview, and that he was told to stand by the car. Steve said that he heard voices, went to the back yard and saw his brother kicking and pistol whipping a man he later identified as Jerry Morgan. This beating went on for seven to ten minutes. Despite this alleged kicking and pistol whipping, the coroner confirmed that there were no bruises on Jerry. In addition, when Jerry attended a Morgan family event at his mother's house the Sunday prior to the murders, had no injuries. Steve testified that after this incident, he, Alvin and Wilson returned to Alvin's home in Rusk. According to Steve, there was a lamp on in the living room, about two to four days before the killings. However, testimony at Alvin's trial established that the electricity to the house in Rusk had been terminated in April 4, 1984 until January of 1985. Steve said, on April 4, 1984, while on drugs, said he took Alvin's clothes and a piano and burned them outside the house at Rusk. Two neighbors testified that, after the fire, it did not appear that anyone lived in this house. This was the house in which Cynthia claimed she spent the night after the Morgan murders three and one-half weeks later. Steve also testified that a few days later, Alvin, Wilson and Cynthia appeared at his house in the early morning hours. Contrary to the Cynthia's testimony, Steve said there was no question that all three came into his house and his (Steve's) wife was present. At Alvin's trial, Steve admitted untruths in the statement he gave to police. Following the Alvin Kelly trial, Steve Kelly has subsequently stated on multiple occasions, "I turned state's evidence against my brother for a crime he didn't do."

Suppression of prior interviews and tapes:

The critical evidence of the tapes and records of prior contact with a law enforcement official was suppressed by the DA's office during the trial. Wilson's defense attorney apparently found out about the statement and tried to obtain a copy. He was told it could not be found. The evidence would certainly not help the prosecution since the inconsistencies cast reasonable doubt on the veracity of their "star eyewitness". Furthermore, Cynthia's first statement in 1985 was almost identical to her second with the exception of those sections obviously changed to more closely fit the evidence in the case. In view of that fact, Wilson and his attorney (as well as Alvin's) should have been provided with the tapes and any other materials dealing with her testimony under the Rules of Evidence.

False assertion that no deal was made with prosecutor:

Despite her self-confessed involvement in the Ford murder 17 days after the Morgan murders and her subsequent implication of herself in the Morgan murders, Cynthia is a free woman who seemingly need not fear prosecution for her involvement in these heinous crimes. During the trial, Cynthia said she had not made a deal with the DA's office in exchange for her testimony. Though it may be technically true that no formal deal was made, no immunity officially offered, there is clear evidence that a tacit agreement not to pursue prosecution for her involvement in the cases existed. Though she confesses her part in the Ford murder in 1985, and, according to affidavits about conversations with her about the murder, may well have been the one who actually pulled the trigger, she is free. She possesses intimate and critical knowledge about the Morgan murders, which led to the convictions of her husband and Wilson, yet she has never been charged for her involvement. This oddity can only be explained by the fact that there was indeed a deal, tacit as it may be. In order to solve the crime, prosecutors and law enforcement officials needed her information and testimony and two other people to place inside the home to make their version of the events appear credible.

Prosecutorial pressure and/or coercion:

Since the trial, numerous witnesses have come forward with sworn evidence that indicates that Cynthia admitted to them that she lied under oath because she was frightened. Her fear stemmed from threats by the prosecution to charge her with the Ford murder if she did not cooperate in the Alvin Kelly and Ronnie Lee Wilson trials. Alvin's sister and brother-in-law say Cynthia told them that officials threatened to kill her and her child if she did not cooperate. During this meeting with Cynthia in 1998, Cynthia also expressed fear for the her in-Iaw's welfare if they began "asking too many questions". Cynthia has a history of drug and alcohol abuse and involvement in crime. At the time, she had implicated herself in the Ford murder. Threats of prosecution and eventual imprisonment would be very real to her and effective tools against someone who would probably have a strong sense of self-preservation. And, with no statute of limitation on the crime of murder, the lack of an immunity agreement or formal deal assures initial and continuing cooperation. One of Alvin's brothers signed an affidavit in 1998 saying that he was approached by prosecutors who said they would get rid of pending criminal charges against him if he would give them information leading to Alvin's conviction. He told them he knew nothing and served his time. Though he had evidence about Alvin's innocence, prosecutors were not interested in that. Another brother told people he was coerced into giving untruthful testimony to convict Alvin.

Witnesses/coercion:

Before Kelly's trial he was contacted by Jonny Waller who informed Kelly that he knew he did not kill the Morgans' because he was with him the night this crime took place. They had just changed out engines in Kellys truck. Kelly tells Waller to go to his attorney and tell him this and come to trial and testify. At daylight the next morning Gregg Co. sheriff Dept. raids the Waller home and finds marijuana and drug paraphernalia. So Waller who is on parole from TDCJ already is told if he comes to Kelly's trial he will be sent back to prison. Waller has not been heard from since. Kelly has asked every court appointed attorney to find and talk to Waller but none have done so yet. Kelly has a court appointed attorney for his Federal Habeas and Scott is a good attorney. However he has other cases and is limited to the time and investigation he can spend on Kelly's case as bell as having limited money for investigators. Jelly needs help in finding his alibi witness and talking to other witnesses who were not allowed to testify at the trial. Kelly is an indigent inmate and cannot afford to pay investigative fees to hire an investigator. He needs your help in finding and securing an investigator. To help contact Kelly at:

Alvin Kelly, #999012
Polunsky Unit
3872 FM350 South
Livingston, Texas 77351 USA

Kelly v. Cockrell, 72 Fed.Appx. 67 (5th Cir. 2003) (Habeas).

Defendant, who was convicted of capital murder in Texas and sentenced to death, filed petition for federal habeas relief. The United States District Court for the Eastern District of Texas denied the petition, and defendant filed application for issuance of a certificate of appealability (COA). The Court of Appeals, Benavides, Circuit Judge, held that: (1) affidavits executed seven years after defendant's trial did not establish the factual basis underlying defendant's claim that his death sentence constituted cruel and unusual punishment because it was secured in part through the use of perjured testimony; (2) even if defendant was denied sufficient funds to adequately investigate and prepare his defense in violation of Ake, defendant made no substantial showing of prejudice; and (3) defense counsel did not render ineffective assistance. Denied.

BENAVIDES, Circuit Judge:

Petitioner Alvin Andrew Kelly (Kelly), convicted of capital murder in Texas and sentenced to death, appeals the denial of federal habeas relief. In his “Application for Issuance of a Certificate of Appealability [COA] on Rejected Requests,” Kelly raises following claims: (1) his conviction and sentence constitute a denial of due process of law because he is actually innocent; (2) the prosecutor violated his due process rights by arguing incorrectly to the jury that his former wife should not be considered an accomplice; (3) his death sentence constitutes cruel and unusual punishment because it was secured in part through the use of perjured testimony; (4) the denial of sufficient funds to adequately investigate and prepare his defense constitute a denial of due process of law and cruel and unusual punishment; (5) the failure to provide sufficient funds to investigate and prepare his defense rendered counsel's performance ineffective; (6) the state court's denial of his motion to recuse itself denied him due process; and (7) counsel rendered ineffective assistance at trial.FN1 For the reasons stated below, we DENY a COA with respect to each of the seven claims.

FN1. Also, the district court granted a COA with respect to four claims that have not yet been briefed and thus are not before us: (1) Kelly's conviction was obtained through the prosecution's use of perjured testimony; (2) the prosecution failed to disclose exculpatory evidence; (3) the prosecution did not disclose that it had agreed not to prosecute Kelly's former wife or brother-in-law in exchange for their testimony; and (4) the district court made impermissible credibility determinations in connection with the grant of summary judgment.

I. FACTUAL AND PROCEDURAL HISTORY.

On the morning of May 1, 1984, in Gregg County, Texas, the bodies of Jerry Morgan, his wife Brenda, and their twenty-two month old son Devin were discovered in their home by other family members. Each person had died of gunshot wounds. Various items were missing from the victims' home, including a 1977 Pontiac Catalina, a .22 caliber revolver, a .380 semi-automatic pistol, a 7-millimeter rifle, a Remington 870 pump action shotgun, a .38 caliber derringer, a television set, a video recorder, a stereo, decorative brass butterflies, and a coffee maker.

These murders remained unsolved for six years. In 1990, a man named Chris Vickery called the Gregg County Sheriff's Office and indicated that his former wife, Cynthia Kelly (Cynthia), had information for the authorities. At that time, Cynthia lived in Michigan, and Kelly was serving a 30-year sentence in Texas for the murder of John Ford.FN2 The authorities contacted Cynthia, and ultimately obtained an indictment charging Kelly with the capital murder of Devin Morgan during the course of the robbery of his father, Jerry Morgan.

FN2. Kelly had pleaded guilty to the unrelated murder of John Ford, which occurred after the instant offense.

At trial, Steven Kelly, Kelly's younger brother, testified that Kelly and he were in the business of selling drugs. Kelly's source of drugs or “main man” was Walter Shannon.FN3 Several days prior to the instant offense, Steven drove with Kelly and Ron Wilson, a fellow drug trafficker, to a home later identified as the victims' home. Prior to exiting the vehicle, Kelly instructed Steven to remain in the vehicle. Disregarding that instruction, Steven walked around to the back of the house because he heard an argument. Steven observed Kelly pointing a gun at Jerry Morgan and threatening “I want you to know that I can kill you at any time.” Kelly noticed Steven watching and angrily ordered him back to the vehicle. As Steven returned to the vehicle, he heard Wilson arguing with a woman inside the home. Kelly and Wilson also returned to the vehicle. As the three men drove away, Wilson, who was obviously upset, said to Kelly “I told you not to bring him [Steven] because ... we're supposed to take care of some business, and ... we didn't take care of it, ... we're supposed to prove a point, and now, that they're going to be upset with us.” Kelly responded “we can always come back later and take care of it, ... there's no problem there.”

FN3. Walter Shannon was also known as W.W. Shannon.

Steven further testified that a few days later on the night of April 30, 1984 (the night of the instant offense), Kelly, Wilson and Cynthia arrived at his house after he and his wife had gone to bed. Appearing very nervous and in a hurry, Kelly said he was in serious trouble and needed money. Kelly confessed that he had killed the family Steven had seen him threaten, and the child was “involved.” Kelly then opened a briefcase, handed Steven a pistol, FN4 and asked for “five hundred dollars to get out of town.” Steven gave Kelly the five hundred dollars, and Kelly left with Cynthia and Wilson.

FN4. Kelly was wearing a pistol when he entered Steven's house but he did not give that gun to Steven.

Cynthia testified that she met Kelly sometime in 1982 or 1983 and they began living together in Tyler, Texas.FN5 Cynthia thereafter became addicted to methamphetamine and would frequently accompany Kelly while he was conducting drug deals. Kelly carried a firearm and had Cynthia carry a pistol to “watch his back.” FN6

FN5. Cynthia and Kelly were married after the instant offense on September 5, 1985.

FN6. Kelly told Cynthia that the police could not perform a ballistics test on a .22 caliber gun.

On the evening of April 30, 1984, after drinking beer and injecting methamphetamine, Cynthia, Kelly, and Wilson drove to the victims' home. Upon arrival, Kelly ordered Cynthia to remain in the vehicle. Cynthia had been unaware of both the destination and the purpose of this trip. While waiting for the men, Cynthia heard gunfire and a baby crying. She entered the home and saw that Kelly had a woman (Brenda Morgan) pinned against the wall and that a baby (Devin Morgan) was crying. Cynthia picked up the child and shielded him from the sight of his mother struggling with Kelly. Kelly shot Brenda in the back of the neck and dragged her to a bedroom. Cynthia put the baby in a chair and followed Kelly to the bedroom. Brenda's husband Jerry had already been shot, and Kelly placed Brenda next to him. Brenda begged Cynthia for help, and Cynthia responded by retrieving a towel and placing it under Brenda's head.

Cynthia returned to the living room and attempted to comfort the crying baby. Kelly grabbed the crying infant from Cynthia and shot him in the head. Kelly aimed his gun at Cynthia and ordered her to return to the vehicle. As she exited the home, Cynthia heard Kelly again shoot the infant. Cynthia testified that Kelly used the same gun, a .22 caliber pistol, to shoot both Brenda and the baby.

Kelly and Wilson took several items from the victims' home, including guns, decorative brass butterflies, and a coffee maker. Kelly, with Wilson as a passenger, drove the victims' car and ordered Cynthia to follow him in their vehicle. Pursuant to Kelly's instructions, the three wiped the victims' car to destroy any fingerprints and abandoned the car in a hospital parking lot in Tyler, Texas. Subsequently, while driving, Kelly and Wilson discussed needing money, and the three “ended up at” Steven's home. Cynthia's memory became “blurry” after that point; however, she did remember Kelly and Steven retreating to the pool room to have a conversation.FN7. Cynthia did not hear any of their conversation.

The State introduced evidence corroborating several points of Cynthia's testimony, including the location of the mother's and child's gunshot wounds, the caliber of the murder weapon, the location and position of the bodies in the home, the towel that was found under the mother's head, and the location of the victims' car (which was devoid of fingerprints). The State also introduced evidence that Jerry and Brenda Morgan had been City Marshal Reserve Officers and argued that Kelly's motive for killing the Morgans was that they were providing information to law enforcement.

Additionally, Cynthia's sister Violet Brownfield testified that Kelly had “bragg[ed]” about killing a family, including a child. Danny Moore, who had met Kelly through Moore's cousin, testified that Kelly said he collected “debts at a forty-sixty split” for Walter Shannon. Moore further testified that Kelly said he had “taken care of that job ... [and] need[ed] to go see the man about some money.” Kelly further explained that “that man, his old lady, and the kid ... they're not coming back.” Kelly became angry and said “I warned them, they had a chance. [T]hey wouldn't do nothing.” Kelly warned that “there's going to be a lot more people end up like this if they don't pay up.”

Kelly's defense theory was that the victims were killed by an unidentified black assailant. He relied on the following evidence: (1) hairs with Negroid characteristics were found in vacuum sweepings from the Morgans' home; (2) a pick-up truck was stolen from a parking lot near the victims' abandoned car; (3) two black males were apprehended for the theft of that truck; and (4) a necklace was recovered which two of the victims' family members initially identified as belonging to Brenda Morgan. Kelly's theory was that Cynthia had a relationship with a black man and she had fabricated her story to protect that man and/or to attempt revenge against Kelly.FN8

FN8. The State introduced evidence through Timothy Fallon, a Trace Evidence Analyst, that the hairs that had Negroid characteristics did not match either of the two black men who were apprehended for theft of the truck. Additionally, Fallon explained that hair that had Negroid characteristics did not necessarily come from a black individual and could come from a Caucasian individual.

In October of 1991, a Gregg County, Texas jury found Kelly guilty of capital murder. At the punishment phase of the trial, the State introduced evidence that Kelly has a bad reputation for violence and a record of criminal convictions, including burglary, unlawful weapon possession, controlled substance delivery and possession, aggravated sexual assault, and murder. The jury affirmatively answered the special issues set forth in Article 37.071(b) of the Texas Code of Criminal Procedure, and the trial court sentenced Kelly to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence, Kelly v. State, No. 71,361 (Tex. Crim.App. June 26, 1996), and the Supreme Court denied Kelly's petition for certiorari on March 24, 1997. Kelly v. Texas, 520 U.S. 1145, 117 S.Ct. 1316, 137 L.Ed.2d 479 (1997).

Kelly filed a state habeas petition, and the state trial court recommended denying relief. The Court of Criminal Appeals denied relief without written order, Ex parte Kelly, No. 36,791-10 (Tex .Crim.App. April 8, 1998), and the Supreme Court denied certiorari on October 5, 1998. Kelly v. Texas, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 172 (1998).

The federal district court dismissed Kelly's first federal habeas petition as unexhausted. Kelly then filed a second application for state post-conviction relief, which was dismissed as an abuse of the writ by the Texas Court of Criminal Appeals. Ex Parte Kelly, No. 36,791-02 (Tex.Crim.App. September 13, 2000). Kelly then filed the instant petition, which the district court denied. As previously indicated, the district court granted Kelly's motion for a COA with respect to four claims that have yet to be briefed. Before us now is Kelly's application for a COA with respect to seven issues.

II. STANDARD OF REVIEW

As indicated, Kelly requests a COA from this Court. Section 2253(c)(1) provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals....” Recently, the Supreme Court made clear that “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). To obtain a COA, Kelly must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To make such a showing, he must demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El, 123 S.Ct. at 1039 (internal quotation marks and citations omitted).

In Miller-El, the Supreme Court reiterated that we “should limit [our] examination to a threshold inquiry into the underlying merit of [the] claims.” Miller-El, 123 S.Ct. at 1034 ( Slack, 120 S.Ct. 1595). The Court explained that “a COA ruling is not the occasion for a ruling on the merit of petitioner's claim....” Id. at 1036. Instead, a COA ruling “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 1039. To make this assessment, a court of appeals “look [s] to the District Court's application of AEDPA to petitioner's constitutional claims and ask[s] whether that resolution was debatable amongst jurists of reason.” Id. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. If a court of appeals denies a COA by deciding the merits of an appeal, it essentially decides the appeal without jurisdiction. Id.

We must be mindful that “a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 1040. As such, we do not decide the merits of Kelly's claims, but only whether he has demonstrated that “ ‘reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” ’ Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). Additionally, when a district court denies a claim on a procedural ground, “a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id.

III. ANALYSIS

A. DUE PROCESS VIOLATION BASED ON CLAIM OF ACTUAL INNOCENCE

Kelly first argues that his conviction and sentence constitute a denial of due process because he is actually innocent of the crime. Relying on Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the district court concluded that “[b]ecause clemency can be obtained from the Board of Pardons and Paroles of the State of Texas, actual innocence, by itself, is not a claim for which relief can be granted in federal habeas corpus for someone sentenced to death under Texas law.” Finding the claim not cognizable in federal habeas proceedings, the district court denied relief and a COA.

“Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Herrera, 506 U.S. at 400, 113 S.Ct. 853. Instead, a claim of actual innocence is a “gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Id. at 404, 113 S.Ct. 853. Accordingly, we conclude that the district court's conclusion is not debatable among jurists of reason.

Kelly argues that the independent constitutional claim is the due process violation based on the state's awareness of the false testimony it elicited at trial. However, as noted previously, the district court has granted a COA with respect to that particular due process claim. At this point in the appeal, we are addressing only the claims that involve a request for a COA.

B. DUE PROCESS VIOLATION BASED ON PROSECUTORIAL ARGUMENT

Kelly argues that his due process rights were violated by the prosecutor's incorrect argument that Cynthia should not be considered an accomplice with respect to the instant offense. For constitutional error to have occurred, a prosecutor's improper argument must have “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986); cf. Earvin v. Lynaugh, 860 F.2d 623 (5th Cir.1988) (the evidence must be so insubstantial that no conviction would have occurred but for the argument made by the prosecutor).

During closing arguments at the guilt-innocence phase, the prosecutor referred to the jury instructions and stated the following:

The law in Texas is that if an accomplice testifies, before a Jury can convict, there must be some other evidence to connect the Defendant to the offense charged. The Court goes on to tell you what an accomplice is. And we submit, ladies and gentlemen, Cindy Kelly is not an accomplice because Cindy Kelly did not act with intent to promote or assist in the commission of this offense. She did not enter the house with the intent to commit the murder or the robbery. In fact, Cindy Kelly acted in an attempt to stop what was done. She attempted to stop the murder of the baby. She begged this Defendant to leave the baby at a doorstep and to save the baby's life. The very crime scene itself shows that Cindy Kelly is not a party to this offense because she is the one that left the folded towel under the head of Brenda Morgan in an attempt to comfort the victim. The Court further instructs you that to be a party to the offense, they must be connected to the offense before or during the commission of the offense. Cindy Kelly, at the order and direction of Alvin Kelly, drove away at his instructions and his direction. At his order, she helped wipe the car down in Tyler after the capital murder was complete. She had no intent prior to or during to aid or assist in the commission of the offense. She just thought this was business as usual when her [sic] and Al went out. The Court also tells you that mere presence alone does not make a person an accomplice. Even if there's any question in your mind as to whether Cindy Kelly is an accomplice, the testimony is corroborated and overwhelming by three witnesses - three witnesses who this Defen[d]ant confessed to - Steve Kelly, his brother, Violet Brownfield, and Danny Moore.

The record contains evidence supporting the prosecutor's argument that Cynthia was not an accomplice. As such, the argument is a fair comment on the evidence.

Relying on Creel v. State, 754 S.W.2d 205 (Tex.Crim.App.1988), the district court denied relief. In Creel, the Court of Criminal Appeals reiterated that without an affirmative act on the part of the witness to assist or encourage the murder, the witness is not an accomplice. Id. at 213. Indeed, Kelly points to no evidence at trial that Cynthia committed an affirmative act to assist or encourage the murder of the baby, Devin. We conclude that the district court's resolution of this issue is not debatable among jurists of reason.FN9

FN9. In support of his argument, Kelly relies on the Supreme Court's decision in Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957). There, the Supreme Court held that the petitioner's due process rights were violated when the prosecutor knowingly elicited testimony that gave a false impression of material evidence to the jury. Alcorta did not involve a claim of improper prosecutorial argument. To the extent that Kelly is attempting to argue that his due process rights were violated based on the prosecution's knowing use of perjured testimony and failure to disclose exculpatory evidence, as noted previously, those claims are not yet before us.

* * *

G. VIOLATION OF SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

The Supreme Court has recently reaffirmed the familiar two-prong test for ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. (Terry) Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To demonstrate that counsel was ineffective, a petitioner must establish that counsel's representation fell below an objective standard of reasonableness. See id. To show prejudice, he must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. See id. at 1511-12.

1. Failure to Properly Examine Cynthia

Kelly argues that counsel rendered ineffective assistance by failing to cross-examine Cynthia with respect to the existence of any agreement she had with the State for her testimony. During the state habeas proceedings, the state court found that “[t]here was no agreement between the State and Cynthia ... that she would not be prosecuted for the murders to induce her to testify.”

Kelly admits that because Cynthia denied any such agreement during her pre-trial deposition, counsel correctly would have expected her to continue to do so at trial. Kelly further acknowledges that the prosecutor personally represented to the court that no deal had been made with Cynthia in exchange for her testimony and that the State did not consider Cynthia a codefendant or a coconspirator. Instead, according to the State, Cynthia was a witness to the murders. Nonetheless, Kelly asserts that had counsel asked Cynthia whether she had received anything for her testimony, it would have (at least) raised a question of credibility for the jurors.

The district court assumed arguendo that counsel's failure to make this inquiry constituted deficient performance. With respect to the second prong, the district court “adopted” the state court's finding that there was no agreement between the State and Cynthia that she would not be prosecuted in exchange for testifying against Kelly. Based on this factual finding, the district court found there was not a reasonable probability that, had counsel cross-examined Cynthia with respect the existence of any such agreement, the outcome of the guilt or sentencing phase would have been different.

Relying on the affidavits of Kelly's sister Nancy Brown and her husband, Conley Brown, defense investigator Barry Higginbotham, Cynthia's sister, Beverly Stemen, and state habeas counsel Mark Breding, Kelly contends that subsequent investigation has demonstrated that the authorities either: (1) coerced Cynthia into testifying by threatening her life and that of her son; or (2) promised, advised, or lead Cynthia to believe that she would not be prosecuted if she returned to Texas to testify.

Contrary to Kelly's contentions, the hearsay in the affidavits regarding some vague threat by the authorities does not rise to a substantial showing. None of the affidavits provide that Cynthia admitted that she had an agreement with the State. The closest allegation is that representatives of the district attorney's office told Cynthia's sister Beverly Stemen that although Cynthia would not be granted immunity, she would not be prosecuted. Kelly's argument is that Cynthia was not prosecuted even though her sister informed Assistant District Attorney Rebecca Simpson that Cynthia had confessed to shooting Jerry Morgan.

However, the state court found that Beverly never had a conversation with Simpson or the District Attorney's Office investigator Russell Potts concerning Cynthia shooting Morgan. Moreover, as set forth previously, in a 2001 deposition, Cynthia's sister Beverly contradicted her previous affidavit by testifying that “I remember [Cynthia] saying very clearly on that point, very clearly that in [Cynthia's] dream she had shot the man.” FN19 Further, the state court found that Cynthia never told her sisters that she shot Jerry Morgan and that Cynthia's reference to shooting a man was only in the context of a nightmare.

FN19. As set forth previously, Beverly stated in her deposition that she was angry at Cynthia at the time she lied. Beverly also indicated that she was taking “medications” and went to see a psychiatrist because the medicine “was causing me to do things and say things that weren't of my nature, that were inappropriate.” Specifically, the state court found that Beverly was taking the following medications when she had executed the affidavit: “Luvox, Wellbutrin, Cytomel, Trazodone, Methyphaidate, Conazepam, Methpheid, Cyclobenzaabr, Ultram, and Zepharine.”

The State's position has been that Cynthia did not participate in the murders and thus she would not be prosecuted. The state court found that District Attorney's Office investigator Russell Potts and Sheriff's investigator Chuck Willeford informed Cynthia that “if it was shown that she participated in the crime she would be prosecuted. She was informed that mere presence at the scene was not sufficient to charge her with the crime.”

In any event, the question before us is whether Kelly has made a substantial showing that there is a reasonable probability of a different outcome had defense counsel cross-examined Cynthia regarding any deal she allegedly had with the State. Although defense counsel did not inquire regarding a deal with the State, counsel did question Cynthia's motives while on the stand. Counsel asked Cynthia whether the State had charged her with any offense, and she responded no. On cross-examination, Cynthia admitted that the State paid for her trips between Michigan and Texas and for her stay in Texas.

Additionally, the state court found that defense counsel cross-examined Cynthia regarding her decision to speak to law enforcement after the dismissal of a child support lawsuit against Kelly. In view of the evidence against Kelly at trial and the questions regarding Cynthia's motivation to testify, we are confident that Kelly has not shown that the district court's conclusion (that there exists no reasonable probability of a different outcome had defense counsel cross-examined Cynthia regarding any deal she allegedly had with the State) is debatable among jurists of reason.

Kelly also argues that counsel rendered ineffective assistance by failing to cross-examine Cynthia with respect to the role she played in the murder of John Ford.FN20 Kelly argues that such cross-examination would have disclosed to the jury that Cynthia had far greater involvement in “criminal activities than she admitted at trial.” According to Kelly, this questioning “would have indicated that she was actually an accomplice in the Morgan killings, rather than simply being present and forced to assist at gunpoint, as she claimed at trial.” Of course, as found by the state court during habeas proceedings, had counsel conducted such a cross-examination during the guilt phase, the jury would have been informed that Kelly had committed another murder. Indeed, Kelly's counsel had filed a motion in limine to exclude evidence of extraneous offenses such as the Ford murder. The district court denied relief on this claim, concluding that Kelly had not met the first prong of Strickland. 466 U.S. at 687, 104 S.Ct. 2052.

More specifically, the district court opined that “[c]onsidering that Kelly denied guilt in the Morgan murders, the Court cannot say that a strategy of not admitting to the Ford murder during the guilt/innocence phase of the trial, in order to lessen the chance of jury prejudice, would have been objectively unreasonable.” On appeal, Kelly does not acknowledge, much less challenge, this conclusion. Accordingly, because cross-examination of Cynthia regarding another murder would have introduced very prejudicial evidence during the guilt phase, we conclude that Kelly has not shown that the district court's resolution of this issue is debatable among jurists of reason.

FN20. Kelly was serving a sentence for the murder of John Ford at the time the instant, unrelated offense was solved.

2. Failure to File Prepared Motion to Transfer Venue

Elizabeth Fulton, who was co-counsel for Kelly's lead attorney Harry Heard, prepared a motion to transfer venue that was never filed. Under Texas law, to prevail on a motion to transfer venue based on unfavorable pretrial publicity, a defendant must establish, among other things, that pretrial publicity was pervasive, prejudicial, and inflammatory. McManus v. State, 591 S.W.2d 505 (Tex.Crim.App.1979); Demouchette v. State, 591 S.W.2d 488 (Tex.Crim.App.1979).

Relying on three affidavits and twenty-seven newspaper articles covering the instant offense, Kelly argues that trial counsel should have filed the motion, and it would have been granted.FN21 In support of this argument, Kelly points to two statements made by each of the affiants. The first statement in each of the affidavits reads as follows: “It is my belief that a conspiracy of influential people constituting a dangerous combination against Alvin Kelly that would preclude a fair trial in Gregg County, Texas, exists.” The second statement by the affiants reads as follows: “It is my belief that the newspaper accounts that attempt to tie the murder of the Morgan family to the Kentucky Fried Chicken (KFC) murders would also preclude a fair trial in Gregg County, Texas.” The apparently unrelated “KFC murders” in the region had received a good deal of media coverage and had not been solved (at least at the time of Kelly's trial).

FN21. The district court assumed arguendo that twenty-seven newspaper articles over a six-year period constituted pervasive press coverage.

With respect to the first statement made by the affiants, the district court found that the conspiracy allegations and prejudice against the defendant are vague and conclusory. With respect to the allegation that Kelly was prejudiced by the newspaper articles, the district court found that none of the summaries offered by Kelly indicate that the respective writers attempted to tie the instant murders to the KFC murders. Indeed, all the references found by the district court indicated that the instant murders and the KFC murders were not related.FN22 Thus, the district court concluded that the state trial court would not have found credible the assertion in the affidavits that the newspaper coverage connecting the instant offense to the KFC murders would have precluded a fair trial.

FN22. We also note that the references to the KFC murders were in four articles published in 1984 and one article in 1989. The instant trial was conducted in 1991.

In his brief, Kelly does not attempt to demonstrate that the district court's conclusions were incorrect. This Court is not persuaded that twenty-seven articles over a time period in excess of six years is pervasive. Moreover, in light of Kelly's failure to show that the conspiracy allegations were more than conclusory or that the newspaper coverage attempted to connect the instant offense with the KFC murders, we are convinced that the district court's resolution of Kelly's claim that counsel rendered ineffective assistance for failing to file the motion to transfer venue is not debatable among reasonable jurists.

3. Counsel was Intoxicated During Trial

In the alternative to the above arguments, Kelly argues that no prejudice is necessary because his counsel was intoxicated during trial and a “drunk lawyer is no better than a sleeping one.” In Burdine v. Johnson, 262 F.3d 336 (5th Cir.2001) (en banc), cert. denied, 535 U.S. 1120, 122 S.Ct. 2347, 153 L.Ed.2d 174 (2002), this Court held that a defendant's Sixth Amendment right to counsel is violated when that defendant's counsel is repeatedly asleep through not insubstantial portions of the defendant's capital murder trial. Under such circumstances, it must be presumed that the violation prejudiced the defendant. Contrary to Kelly's reliance on Burdine, in that case, this Court distinguished intoxicated counsel from sleeping counsel, explaining that sleeping or unconscious counsel could not perform at all for his client. Id. at 349. We are bound by precedent to reject Kelly's argument that he need not show prejudice based on defense counsel's alleged intoxication. See also Burnett v. Collins, 982 F.2d 922 (5th Cir.1993) (rejecting claim that counsel rendered ineffective assistance simply because counsel abused alcohol).

Accordingly, because Kelly has failed to make a substantial showing of the denial of a constitutional right with respect to each of his claims, we DENY a COA.