Kyles v. Whitley ( 1993 )


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  •               IN THE UNITED STATES COURT OF APPEALS
    
                              FOR THE FIFTH CIRCUIT
    
    
    
                                   No. 92-3310
    
    
    
    CURTIS LEE KYLES,
                                                 Petitioner-Appellant,
    
                                     versus
    
    JOHN P. WHITLEY, Warden, LOUISIANA STATE
    PENITENTIARY, ETC., ET AL.,
                                                 Respondents-Appellees.
    
    
    
    
              Appeal from the United States District Court
                  for the Eastern District of Louisiana
    
    
                          (     October 14, 1993      )
    
    Before KING, HIGGINBOTHAM, and JONES, Circuit Judges.
    
    HIGGINBOTHAM, Circuit Judge:
    
         Curtis Lee Kyles, an inmate sentenced to capital punishment,
    
    appeals the judgment of the district court, denying him the writ of
    
    habeas corpus.      In 1984, a Louisiana court convicted Kyles of
    
    shooting and killing Mrs. Dolores Dye during a daylight armed
    
    robbery before many witnesses.       As he did before the jury that
    
    convicted and condemned him, Kyles asserts innocence and maintains
    
    that he was framed by a now-deceased acquaintance.           Although
    
    phrasing his claims in constitutional terms, Kyles essentially asks
    
    this court to reconsider the defensive theory rejected by the jury
    
    nine years ago.   We affirm.
         Kyles     alleged   numerous   constitutional      violations   in    his
    
    petition for writ of habeas corpus.          In a thorough, forty-six page
    
    opinion, the district court rejected all of them. On appeal, Kyles
    
    narrowed his focus by briefing only two claims, under Brady and
    
    Strickland.1      As a habeas court, we do not sit to rehear Kyles'
    
    trial.   Nonetheless, because both Brady and Strickland analyses
    
    inquire into probable effects on trial outcomes, we begin by
    
    emphasizing this conclusion:          a complete reading of the record
    
    demonstrates that Kyles faced overwhelming evidence of guilt.              In
    
    particular, three eyewitnesses positively identified Kyles among a
    
    photographic lineup within 96 hours of the murder.              Those three,
    
    joined by a fourth eyewitness, testified at trial that Kyles was
    
    definitely the gunman, even after comparing him with the man that
    
    Kyles contends framed him. None of the evidence offered by Kyles--
    
    or that he alleges he was prevented from offering--effectively
    
    undermined the powerful weight of this eyewitness testimony.
    
         We also note that the limited focus of a federal habeas court
    
    was recently emphasized when the Supreme Court held that "the
    
    standard for determining whether habeas relief must be granted is
    
    whether the . . . error 'had a substantial and injurious effect or
    
    influence    in   determining   the       jury's   verdict.'"     Brecht    v.
    
    Abrahamson, 
    113 S. Ct. 1710
    , 1714 (1993) (quoting Kotteakos v.
    
    United States, 
    328 U.S. 750
    , 776, 
    66 S. Ct. 1239
    , 1253 (1946)).
    
    This standard controls all trial, as distinguish from structural,
    
    
         1
          Brady v. Maryland, 
    373 U.S. 83
    , 
    83 S. Ct. 1194
     (1963);
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
     (1984).
    
                                          2
    errors--those whose impact may be quantitatively assessed in the
    
    context of other evidence in order to determine their effect on
    
    trial outcomes.    See Arizona v. Fulminante, 
    111 S. Ct. 1246
    , 1249
    
    (1991).
    
                                      I
    
         On December 7, 1984, a Louisiana jury convicted Curtis Lee
    
    Kyles of first degree murder in violation of La. R.S. 14:30 and
    
    sentenced Kyles to death.2       The conviction and sentence were
    
    affirmed on direct appeal by the Supreme Court of Louisiana in a
    
    published opinion.     State v. Kyles, 
    513 So. 2d 265
     (La. 1987),
    
    cert. denied, 
    486 U.S. 1027
     (1988).      The Supreme Court of the
    
    United States denied Kyles' petition for a writ of certiorari on
    
    direct appeal.    On January 2, 1989, Kyles commenced state habeas
    
    corpus proceedings by petitioning the state district court for a
    
    stay of execution, post-conviction relief, writ of habeas corpus,
    
    and a new trial based on newly-discovered evidence.   This petition
    
    alleges that Kyles' constitutional rights had been violated in
    
    twenty ways.      Following an evidentiary hearing ordered by the
    
    Louisiana Supreme Court, the state district court denied Kyles'
    
    motions and rendered judgment.    In September 1990, the Louisiana
    
    Supreme Court denied Kyles' application for review of the judgment.
    
         Soon after the state court set an execution date, Kyles
    
    commenced this habeas corpus proceeding in federal court pursuant
    
    to 28 U.S.C. § 2254.      The federal district court reviewed the
    
         2
          A previous trial ended in a mistrial after four hours of
    deliberation because jurors could not reach an unanimous verdict
    regarding guilt or innocence.
    
                                      3
    entire record, including the transcripts and pleadings from the
    
    trial court, direct appeal, and state collateral proceedings.
    
    Concluding that Kyles was given a fundamentally fair trial with
    
    able assistance by counsel, the district court denied Kyles'
    
    petition for writ of habeas corpus on March 24, 1992.
    
         Kyles filed a notice of appeal on April 2, 1992.   The district
    
    court issued a certificate of probable cause.     After filing his
    
    notice of appeal, Kyles filed a Rule 60(b) motion for post-judgment
    
    relief in the district court, claiming newly-discovered evidence.
    
    We granted a motion to hold this appeal in abeyance pending the
    
    disposition of that motion.     The district court denied the Rule
    
    60(b) motion on June 2, 1992.    On August 7, 1992, we vacated the
    
    district court's June 2, 1992 order and remanded with instructions
    
    to deny Rule 60(b) relief on the ground that a petitioner may not
    
    use a Rule 60(b) motion to raise constitutional claims that were
    
    not included in the original habeas petition.     This appeal then
    
    proceeded.
    
                                     II
    
         At approximately 2:20 p.m. on September 20, 1984, Mrs. Dolores
    
    Dye, a sixty-year-old woman, was murdered in the parking lot at the
    
    Schwegmann Brother's grocery store on Old Gentilly Road in New
    
    Orleans.     Testimony at trial established that a young black man
    
    accosted Mrs. Dye as she placed her groceries in the trunk of her
    
    red Ford LTD.     One witness testified that the victim threw her
    
    purse into the trunk, slammed the lid, and tried to get away.   The
    
    assailant grabbed her, they began struggling, and he wrestled her
    
    
                                     4
    to the ground.         Finally, the assailant drew a revolver from his
    
    waistband and fired it into Mrs. Dye's left temple, killing her
    
    instantly.      The gunman then took Mrs. Dye's keys from her hand, got
    
    into    the     Ford     LTD,   and      drove   from   the     parking     lot.
    
           After turning onto the street, a traffic light caused the LTD
    
    to stop beside a truck driver, Robert Territo, who had seen the
    
    shooting and then viewed the gunman's face at close range.                  Another
    
    witness, Isaac Smallwood, was working at the corner of the parking
    
    lot.    The LTD drove close by him after it left the parking lot,
    
    allowing Smallwood to see the driver's face.                  Henry Williams was
    
    also working outside at the parking lot. He witnessed the struggle
    
    and murder and saw the gunman's face as the LTD passed slowly by on
    
    the street within twelve feet of him.
    
           Police    spoke     to   Smallwood,       Williams,    and   three    other
    
    eyewitnesses at the scene.               Later, Territo and Darlene Cahill
    
    called police to report witnessing the murder.                      All of these
    
    witnesses described a young black man, who wore a dark-colored
    
    shirt, blue jeans, and his hair in plaits.
    
           The investigation was aided on Saturday night, September 22,
    
    when Joseph "Beanie" Wallace informed officers that a man named
    
    "Curtis" had sold him a red Ford LTD.               Using the address Beanie
    
    provided, police found Curtis Kyles' name and Beanie identified
    
    Kyles' photograph.         Beanie stated that on Friday, he paid Kyles
    
    $400.00 for the LTD and drove it around New Orleans.                  Only later
    
    did he connect the car with the murder and call police.                Detective
    
    John Miller      testified      during    post-conviction      proceedings    that
    
    
                                               5
    Beanie had spoken to him on previous occasions about various,
    
    unrelated shootings, although this case was the first time that
    
    Detective Miller could use Beanie's information because it was a
    
    homicide. Around midnight, Beanie led police to the car that Kyles
    
    sold him.      Police soon established that the LTD in Beanie's
    
    possession belonged to the victim.3
    
         For security purposes, a police officer was wired to record
    
    this conversation.      During it, Beanie informed officers that Kyles
    
    lived at 2313 Desire, the apartment of Kyles' common-law wife,
    
    Martina "Pinkie" Burns.4            Beanie claimed that Kyles had removed
    
    Schwegmann's grocery sacks from the LTD before turning it over to
    
    Beanie.      Acting    on    this    information,     Detectives   Lambert   and
    
    Saladino went to Desire Street at 1:00 a.m., Monday morning,
    
    September 24.         They picked up five identical plastic bags of
    
    garbage that had been placed outside Kyles' residence.              Inside one
    
    of   those   garbage        bags,    police   found    the   victim's    purse,
    
    identification,       and    other    personal   belongings    wrapped    in   a
    
    Schwegmann's paper grocery sack.
    
         A search warrant for the Burns/Kyles residence had been issued
    
    at 6:07 p.m. on September 23.             At approximately 10:40 a.m. the
    
    following day officers arrested Kyles outside the residence and
    
    searched the apartment. Behind the stove, they found a .32 caliber
    
         3
          The police agreed to pay Beanie $400.00 to compensate him
    for the amount that he had paid to Kyles for the car.
         4
          This name sometimes appears in the record spelled "Burnes."
    We use the term "common-law wife" loosely. Pinkie was the mother
    of Kyles' four children, and he spent about four nights a week at
    her apartment on Desire Street.
    
                                             6
    revolver that contained five live rounds and one spent cartridge.
    
    Ballistics tests later confirmed that this pistol was used to
    
    murder Mrs. Dye.    In a chifforobe in another part of the residence,
    
    officers found a homemade shoulder holster that fit the murder
    
    weapon.   They also discovered two boxes of ammunition in a bedroom
    
    dresser drawer.    One box contained .32 caliber rounds of the same
    
    brand as those found in the pistol.
    
         Back in the kitchen, pet food was found in Schwegmann's sacks
    
    located in a cabinet with pots and pans.            No other human or pet
    
    food was located in that cabinet.          Several cans of cat and dog food
    
    were discovered, including Nine Lives brand cat food and Kal-Kan
    
    brand dog food.    No pets, however, were present in the household.
    
    Detective Dillman testified that police found no cat litter nor a
    
    litter box, although a photograph of the chifforobe shows a bottle
    
    labelled "Hart Flea."          The victim's husband, Mr. Robert Dye,
    
    testified at trial that his wife usually purchased several of
    
    brands for their cats and dogs, including Nine Lives and Kal-Kan.
    
         Partial fingerprints were found on the victim's effects, but
    
    none was sufficient for an identification.            No fingerprints were
    
    found on the murder weapon or in the LTD, but Kyles' prints were
    
    recovered from a Schwegmann's cash register receipt found on the
    
    floor of the LTD. The receipt's contents were illegible, making it
    
    impossible   to   read   the   items   purchased    or   date,   because   the
    
    
    
    
                                           7
    chemical process used to raise the fingerprints obliterated the
    
    ink.5
    
            After Kyles became a suspect, Detective John Dillman prepared
    
    a photographic lineup. On Monday, September 24, Dillman showed the
    
    lineup to five eyewitnesses to the murder. Three of them instantly
    
    picked Kyles out from the array of photographs of young black men;
    
    another tentatively chose Kyles. These three witnesses, as well as
    
    a fourth eyewitness who was not asked to view the photographic
    
    lineup, also positively identified Kyles at trial as the gunman.
    
            The defense contended at trial that the initial informant,
    
    Beanie, framed Kyles.     While Kyles denied any involvement in the
    
    murder, his defense implied that Beanie was the murderer.      After
    
    all, Beanie possessed the LTD when he spoke to police, and the
    
    defense theory accused Beanie of planting the victim's possessions
    
    and the murder weapon at Kyles' residence.    Beanie did not testify
    
    at the trial for either the prosecution or the defense.         Four
    
    defense witnesses--Kevin Black, Ronald Gorman,6 Johnny Burns, and
    
    Kyles himself--testified that they saw Beanie in a red car similar
    
    to the victim's after the killing on Thursday, September 20.7
    
    Defense witness Donald Powell stated that Beanie tried to sell him
    
    the LTD on Friday for $300.      Johnny Burns testified that Beanie
    
            5
          Before the piece of paper was processed, the police had
    noted that it was a cash register receipt from Schwegmann's, but
    no other information regarding its contents was recorded.
            6
          Gorman admitted at trial to a felony conviction for armed
    robbery.
            7
          Black, Gorman, and Burns admitted that they were friends of
    Kyles. Johnny Burns was his brother-in-law.
    
                                       8
    changed the license plates on the LTD Friday night, demonstrating
    
    that Beanie knew the car was stolen.
    
           Central to defense was the theory that Beanie had planted the
    
    most   incriminating      evidence    in      Kyles'    apartment         and    garbage.
    
    Defense witnesses testified that Beanie attended a gathering at
    
    Kyles' residence on Sunday night, September 23.                      The testimony of
    
    Kyles' friends and relatives conflicted as to the number of persons
    
    present and what dinner was served. Johnny Burns, Pinkie's brother
    
    and so Kyles' brother-in-law, testified that during this evening he
    
    saw Beanie stooping near the stove.                  As noted, the murder weapon
    
    was found behind this appliance.              Kyles also testified in his own
    
    defense. He denied owning the revolver and holster and stated that
    
    they must have been planted in the apartment.                         To explain the
    
    presence of .32 caliber rounds, Kyles stated that they were among
    
    ammunition he received when Beanie gave him a .22 caliber rifle as
    
    security for a loan.       As a motive for the alleged effort to frame
    
    Kyles,    the   defense       contended       that     Beanie       was   romantically
    
    interested in Pinkie Burns, Kyles' common-law wife.                              Defense
    
    witnesses Cathy Brown and Carolyn Campbell said that they had
    
    witnessed Beanie make sexual advances to Pinkie.
    
           Kyles denied any involvement in the shooting of Mrs. Dye.                       To
    
    explain the Schwegmann's receipt bearing his fingerprints found in
    
    the LTD, Kyles stated that Beanie had picked him up in a red car on
    
    Friday    and   taken   him    to   Schwegmann's,           where    Kyles      purchased
    
    transmission fluid and a pack of cigarettes. He suggested that the
    
    receipt   might   have    fallen     from     the     bag    when    he    removed    the
    
    
                                              9
    cigarettes.      Kyles also testified that he had purchased the pet
    
    food found in his apartment at Schwegmann's on another occasion.
    
    Kyles claimed that he owned a dog, which it was sometimes kept in
    
    Mississippi at his mother-in-law's home.              He did not know where it
    
    was at the time of trial.          He also stated that his son kept a cat
    
    and that they fed other stray cats.            Other defense witnesses gave
    
    varying testimony as to whether or not Kyles or his children had a
    
    dog or cat.      When asked why he had purchased "so much" pet food,
    
    Kyles    responded     that   he    had    "because    it    was     on    sale"   at
    
    Schwegmann's.        On rebuttal, the prosecution called Schwegmann's
    
    director of advertising to testify.             Examining the cans of pet
    
    food, he denied that these brands had been on sale, explaining that
    
    the prices marked on the cans were not marked-down sale prices.
    
    During    the   prosecution's      case-in-chief,      the     victim's      husband
    
    testified that Mrs. Dye usually purchased the same brands of pet
    
    food as those found in Kyles' residence.
    
         During rebuttal, the prosecution recalled each eyewitness.
    
    Beanie was brought into the courtroom, giving each eyewitness a
    
    chance to view him and Kyles simultaneously.                The jury could also
    
    compare Beanie with Kyles.         Each of the eyewitnesses attested that
    
    Kyles, not Beanie, was the person who committed the murder.
    
         The jury unanimously found Kyles guilty of first degree
    
    murder.    During the sentencing phase, the prosecution relied upon
    
    the evidence adduced during the guilt phase.                 The defense sought
    
    mitigation      by   presenting     evidence    of    Kyles'       close    familiar
    
    relations with his relatives and children.              Kyles also reasserted
    
    
                                              10
    his innocence.     Finding the aggravating circumstance of a killing
    
    during the commission of an armed robbery, the jury unanimously
    
    recommended the death penalty.
    
         At the post-conviction evidentiary hearing, Kyles asserted
    
    that prosecutors had failed to disclose Brady materials to the
    
    defense.      A number of documents in the police file were not
    
    delivered to the district attorney's office until after Kyles'
    
    conviction.    Kyles received them during post-conviction litigation
    
    and maintains that they were favorable and material to his defense.
    
                                         III
    
                                      A. Brady
    
         Kyles' principal claim is that the State withheld purportedly
    
    inculpatory material.        In particular, he points to the following
    
    evidence that was not produced before trial: (1) the transcript of
    
    the recording of Beanie's first conversation with police officers;
    
    (2) a written statement signed by Beanie after police interviews;
    
    (3) notes taken by prosecuting attorney Cliff Strider during an
    
    interview with Beanie; (4) a police memorandum directing officers
    
    to pick up the garbage in front of 2313 Desire Street; and (5) a
    
    list of license plate numbers from cars parked at Schwegmann's on
    
    Thursday night, September 23.
    
                             1. Governing legal standard
    
         Our concern as a habeas court is confined to reviewing for
    
    constitutional violations.       "[T]he suppression by the prosecution
    
    of evidence favorable to an accused upon request violates due
    
    process    where   the    evidence   is    material   either   to   guilt   or
    
    
                                         11
    punishment."   Brady v. Maryland, 
    373 U.S. 83
    , 87, 
    83 S. Ct. 1194
    ,
    
    1196 (1963). The prosecution must also disclose evidence useful to
    
    the defense for impeachment.    United States v. Bagley, 
    473 U.S. 667
    , 676, 
    105 S. Ct. 3375
    , 3380 (1985).   A successful Brady claim
    
    must show (1) the prosecution's suppression of evidence, (2) the
    
    favorableness of that evidence, and (3) the materiality of that
    
    evidence.   United States v. Sink, 
    586 F.2d 1041
    , 1051 (5th Cir.
    
    1978).
    
         The Supreme Court defined materiality in United States v.
    
    Bagley, 
    473 U.S. 667
    , 
    105 S. Ct. 3375
     (1985).   According to Bagley,
    
         evidence is material only if there is a reasonable
         probability that, had the evidence been disclosed to the
         defense, the result of the proceeding would have been
         different. A "reasonable probability" is a probability
         sufficient to undermine confidence in the outcome.
    
    Id. at 682, 105 S. Ct. at 3383 (Blackmun, J.); id. at 685, 105 S.
    
    Ct. at 3385 (White, J., concurring in part).       Writing for the
    
    Court, Justice Blackmun stated that "a constitutional error occurs,
    
    and the conviction must be reversed, only if the evidence is
    
    material in the sense that its suppression undermines confidence in
    
    the outcome of the trial."   Id. at 678, 105 S. Ct. at 3381.
    
         Kyles argues that Bagley's analysis cannot be used in capital
    
    cases.   We have previously rejected this general proposition.   See
    
    James v. Whitley, 
    926 F.2d 1433
    , 1437 (5th Cir. 1991).         Kyles
    
    raises a slightly different argument than the one presented in
    
    James, by insisting that the alleged Brady violation affected not
    
    only the guilt determination, but his sentence as well.         Thus,
    
    Kyles argues, Eighth Amendment considerations are triggered which
    
    
                                    12
    require a stricter scrutiny than Bagley's probable-effect inquiry.
    
    Kyles therefore urges this court to use the "no effect" standard
    
    found in Caldwell v. Mississippi, 
    472 U.S. 320
     (1985), or the
    
    "harmless beyond a reasonable doubt" standard referred to in
    
    Satterwhite v. Texas, 
    486 U.S. 249
     (1988).   In this case, the only
    
    effect the alleged Brady materials could have had on his sentencing
    
    would be through residual doubt.     Kyles presented no mitigating
    
    evidence other than his close relationships with his family.   The
    
    State relied upon the aggravating factor of murder during an armed
    
    robbery, which the jury found proved beyond a reasonable doubt in
    
    the guilt phase.   We are not persuaded that the Eighth Amendment
    
    forecloses using the Bagley standard, when the only effect of Brady
    
    material would be to enhance the possibility of residual doubt
    
    after a jury finds guilt beyond a reasonable doubt.
    
                        2. Review of the evidence
    
         We apply the Bagley standard here by examining whether it is
    
    reasonably probable that, had the undisclosed information been
    
    available to Kyles, the result would have been different.   Rather
    
    than reviewing the alleged Brady materials in the abstract, we will
    
    examine the evidence presented at trial and how the extra materials
    
    would have fit.
    
                         a. Eyewitness testimony
    
         The murder occurred around 2:20 p.m. in the parking lot of
    
    Schwegmann Brother's grocery store. Photographs of the crime scene
    
    taken that afternoon show a bright, sunny day.   Many witnesses saw
    
    the murder, their attention prompted by the victim's screams, and
    
    
                                    13
    then saw the gunman's flight in the victim's car.                  Three of the
    
    eyewitnesses later identified Kyles in a photographic lineup.                   At
    
    trial eleven weeks after the murder, four witnesses identified
    
    Kyles as the gunman.          Significantly, during each eyewitness's
    
    rebuttal testimony, Beanie was brought into the courtroom.                   After
    
    viewing Beanie and Kyles simultaneously, each eyewitness once more
    
    identified Kyles as the murderer.            Also, the members of the jury
    
    received four opportunities to view both Beanie and Kyles after
    
    hearing the witnesses' descriptions of the gunman.
    
          Kyles tried to undermine these identifications by pointing to
    
    discrepancies between his hairstyle and that in descriptions of the
    
    gunman.     Territo, for instance, described the gunman's hair as a
    
    "wooly type braid" or "matted braid".               Defense witness Carolyn
    
    Campbell stated that Kyles always wore his hair in a "bush" style.
    
    Kyles testified that he never wore his hair in plaits or braids.
    
    On   the   other    hand,   the   defense    claimed   that     Beanie    fit   the
    
    descriptions.        Kyles'   friends    Kevin   Black    and    Ronald     Gorman
    
    testified    that    Beanie   wore   braids    in   his   hair    on     Thursday,
    
    September 20.        Donald Powell claimed that Beanie usually wore
    
    braids, but a police photograph taken on June 6, 1984, shows that
    
    Beanie was wearing a Jherri curl fifteen weeks before the murder.
    
    Johnny Burns claimed that Beanie changed his hairstyle to a curl on
    
    Friday, September 21, after the murder.
    
          Kyles contends that the first of the alleged Brady materials
    
    affects this identity issue. A police wire recorded Beanie's first
    
    conversation with police officers.            This was done as a security
    
    
                                            14
    measure,   rather   than   as   a   means   to   preserve   evidence.      The
    
    transcript of this recording was not delivered to the prosecuting
    
    attorney before trial and not disclosed to Kyles.              According to
    
    this transcript, after stating that "Curtis" sold him the LTD on
    
    Friday, Beanie said that Kyles wore his hair in a bush "that day."
    
    We do not agree that this statement made the transcript material
    
    and so mandated disclosure.          The jury otherwise learned of the
    
    supposed discrepancy between descriptions of the gunman's hairstyle
    
    and Kyles' hairstyle.      Beanie's statement adds nothing new and is
    
    itself not decisive. Even if Kyles wore a bush "that day"--Friday-
    
    -he may have worn braids on Thursday. The transcript also contains
    
    Beanie's statement that Kyles sometimes wore braids.
    
         Kyles also claims that a second set of undisclosed documents
    
    impeded his challenge to the eyewitness identifications.                He did
    
    not receive written statements signed by Smallwood and Williams.
    
    Kyles maintains that the jury's confidence in the eyewitness
    
    identifications would have been undermined if the defense could
    
    have impeached these two men with inconsistent statements in the
    
    descriptions they gave to police just after the murder.           Williams,
    
    for example, originally described the gunman as being around 5'5"
    
    with a medium build.       Kyles is closer to six feet tall and is
    
    slender.   Yet when shown Kyles picture four days after the murder,
    
    Williams immediately recognized him as the killer.             Kyles argues
    
    more forcefully regarding Smallwood. At trial, Smallwood described
    
    witnessing the shooting itself.       The original statement he signed,
    
    however, states that he turned to look after hearing the gunshot.
    
    
                                          15
    This discrepancy, Kyles insists, shows that Smallwood embellished
    
    his story, perhaps after coaching.          Kyles overlooks, however, that
    
    Smallwood consistently stated that the gunman then drove the LTD
    
    close by him.    Smallwood always maintained that he got a good look
    
    at the killer then, and like Williams, immediately recognized Kyles
    
    in the photographic lineup.            Smallwood never made a statement
    
    calling his ability to recognize the gunman into question, and we
    
    are not persuaded that use of this material by the defense would
    
    have undermined the force of his identification, particularly in
    
    light of its corroboration by others.
    
           To support the inference of mistake, Kyles cited testimony
    
    that he and Beanie resembled one another.          Defense witness Ronald
    
    Gorman, for instance, stated that Beanie and Kyles resemble each
    
    other "a little" in profile.       Gorman admitted, however, that the
    
    two men's sizes and builds were not alike.               Johnny Burns also
    
    testified that the two men look alike from the side and had similar
    
    complexions.     This testimony is belied, however, by the finding of
    
    the state trial court, during post-conviction proceedings, that
    
    Beanie "distinctly did not resemble" Kyles.         Comparing photographs
    
    of Kyles and Beanie, it is evident that the former is taller,
    
    thinner,   and    has   a   narrower    face.     More   importantly,   the
    
    eyewitnesses and the jury were allowed to compare Beanie and Kyles.
    
    After doing so, Smallwood stated, "they don't look nothing alike to
    
    me."   Each eyewitness repeated their conviction that Kyles was the
    
    gunman they saw at Schwegmann's.
    
    
    
    
                                           16
         We note that none of the undisclosed documents bear on the
    
    credibility of eyewitness Territo's testimony.                   Territo observed
    
    Kyles and Mrs. Dye struggle, and witnessed the shooting itself.
    
    Then, as Kyles drove away in the LTD, he stopped at a red light in
    
    the lane next to Territo.         As Kyles looked around, Territo got a
    
    good look at his face from a short distance away.                              Territo
    
    positively identified Kyles as the gunman in a photographic lineup
    
    four days after the murder, and positively identified Kyles at
    
    trial    twice--the    second    time    after    seeing      Beanie      and    Kyles
    
    together.     There is no evidence in the record that Territo made
    
    inconsistent statements at any time.
    
         The    theory    that   Beanie     framed    Kyles      cannot    explain       the
    
    eyewitnesses' positive identifications. Kyles must assert that all
    
    four of them were mistaken. At trial, Kyles' counsel elicited from
    
    the eyewitnesses      that    they     had   previously      seen     Kyles     in   the
    
    courtroom.8          The     defense     suggested        that      the       in-court
    
    identifications resulted from Kyles' presence at the defendant's
    
    table, reinforced by viewing him there on prior occasions.                           This
    
    implication, however, could not weaken the three out-of-court
    
    identifications.      Territo, Smallwood, and Williams each selected
    
    Kyles from among six similar photographs.                 There is no evidence
    
    that these photographic lineups, four days after the murder, were
    
    conducted     improperly.       Kyles    can     make   no    response        but    the
    
    improbable assertion that each witness coincidentally made the same
    
         8
          Counsel implicitly referred to the first trial and
    suppression hearing. The jury was not informed of the prior
    trial.
    
                                            17
    mistake. We must bear this weighty evidence of guilt in mind while
    
    assessing the probable effect of other undisclosed information on
    
    the jury's verdict.
    
                             b. Tangible evidence
    
         While the eyewitness identifications are convincing, Kyles is
    
    also faced with the great deal of incriminating evidence found in
    
    the apartment where he usually resided.         The defense must also
    
    discount much of this evidence as coincidental.        The remainder,
    
    however, Kyles attributes to Beanie's alleged effort to frame him.
    
         Kyles maintains that the nondisclosure of the transcript also
    
    weakened his ability to establish Beanie's motives for framing him.
    
    The transcript assertedly contains three statements that may do so.
    
    First, in describing the trip to retrieve Kyles' car from the
    
    Schwegmann's parking lot, Beanie referred to the part of the lot
    
    where the murder had taken place.      Kyles would infer from this
    
    statement Beanie's knowledge of, and hence involvement in, the
    
    murder. Second, Beanie described driving around New Orleans in the
    
    stolen LTD and his concern that he might be arrested because of
    
    this possession.      These statements, Kyles argues, lead to one
    
    motive:    that Beanie framed Kyles in order to escape prosecution
    
    himself for murder, complicity in murder, or dealing in stolen
    
    goods.    Finally, the transcript reveals that Beanie requested $400
    
    as reimbursement for the amount he paid Kyles for the stolen LTD.
    
    Kyles translates this statement into another motive by arguing that
    
    Beanie framed him to get a monetary reward.
    
    
    
    
                                      18
         At   trial,   Kyles   elicited    testimony       supporting   these    two
    
    motives, as well as a third:          that Beanie framed Kyles so that
    
    Beanie could pursue his romantic interest in Pinkie Burns.                   The
    
    principal thrust of the defense case was that Beanie committed the
    
    murder. During cross-examination, Detective Dillman testified that
    
    Beanie possessed Mrs. Dye's LTD.         Defense witnesses testified that
    
    Beanie fit the gunman's description.             The presence of the murder
    
    weapon was attributed to Beanie's visit to Kyles' apartment.                  We
    
    are not persuaded that Beanie's reference to the scene of the
    
    murder adds significant weight.        The transcript also reveals that
    
    Beanie followed news accounts of the crime after they alerted him
    
    to the connection between the LTD and the murder.                    As to a
    
    pecuniary motive, Detective Dillman told the jury that Beanie
    
    received $400 after giving his tip. Beanie's request for the money
    
    on the transcript would have been cumulative, at best.
    
         As further support for the defense theory, Kyles elicited
    
    testimony from the police that stolen license plates were on the
    
    LTD when it was found.      Johnny Burns testified that he saw Beanie
    
    change the plates.         The defense maintains that this evidence
    
    dispels   any   notion   that   Beanie     was   the   unwitting    bona    fide
    
    purchaser of a stolen car.      Once more, Kyles claims that the jury
    
    would have attached more significance to this evidence if the State
    
    had disclosed the transcript.         It is true that on the transcript
    
    Beanie did not deny placing stolen plates on the LTD, even as
    
    officers made statements to that effect, but the state never urged
    
    and no prosecution witness ever stated that Beanie was an innocent
    
    
                                          19
    buyer.       The State did not call Beanie as a witness, nor inform the
    
    jury of the contents of his initial tip to police.                              Thus, the
    
    character or credibility of the informant was not presented to the
    
    jury by the prosecution.9             Beanie's tip served only to explain why
    
    police showed Kyles' photograph to the eyewitnesses.                         The defense
    
    established that Beanie had possession of the LTD and that it bore
    
    stolen plates.         A witness testified that Beanie placed them on the
    
    car.       Thus, Kyles did lay the foundation for inferring that Beanie
    
    was not an unwitting buyer of stolen goods, but rather a knowing
    
    possessor who might have been the robber.                   On the other hand, proof
    
    that Beanie changed the plates is not inconsistent with Kyles'
    
    guilt.        Ultimately, this evidence is at best cumulative on a
    
    factual point not rebutted by the State. The nondisclosure of this
    
    much of the transcript was insignificant.
    
           Kyles     also    complains        that      the   failure    to   disclose       the
    
    transcript,      and    two     other       documents     containing      statements      by
    
    Beanie,      impaired    his       defense     by    preventing     him   from       showing
    
    inconsistencies         among       those    statements.       After      the    recorded
    
    conversation       shown      by    the     transcript,     Beanie    went      to    police
    
    headquarters and signed a typewritten statement in the early
    
    morning hours of Sunday, September 23.                      Sometime later, before
    
    Kyles' trial and conviction, prosecuting attorney Cliff Strider
    
    interviewed Beanie and wrote several pages of notes regarding
    
    Beanie's      statements       at    that     time.       Neither    Beanie's        written
    
    statement nor Strider's notes were disclosed to the defense before
    
           9
            This factor is discussed further infra, section III.B.
    
                                                  20
    trial. Kyles claims that the defense could have furthered its case
    
    by informing the jury of inconsistencies, principally between the
    
    first two statements and Strider's notes.
    
         In the first two statements, Beanie described this sequence of
    
    events:     on Friday evening, September 21, Kyles sold the LTD to
    
    Beanie.     Beanie then saw Kyles unload Schwegmann's grocery sacks
    
    and a purse from the LTD and place them in his apartment at 2313
    
    Desire Street.         After 9:00 p.m., Beanie accompanied Kyles and
    
    others to the Schwegmann's parking lot, where they retrieved Kyles'
    
    own car.     Prosecutor Strider's notes generally reflect the same
    
    events,    but   the    dates,    sequence,     and   some   details   changed.
    
    According to the notes, Beanie and Kyles retrieved Kyles' car from
    
    Schwegmann's on Thursday, at 7:45 p.m., rather than Friday after
    
    9:00 p.m.    Then, Beanie saw Schwegmann's sacks and a purse taken,
    
    not from the LTD, but from an apartment, whence they were taken to
    
    Kyles' apartment.       The notes then state that Beanie purchased the
    
    LTD after     the   events,      on   Friday   morning,   rather   than   Friday
    
    evening.
    
         The date of Strider's interview and notes is not disclosed by
    
    the record.      Thus, the time span between the first two statements
    
    and this interview is unknown and the relative weight of the
    
    discrepancies is difficult to gauge.              This is but one problem.
    
    More importantly, evidence that Beanie lacked credibility would
    
    have had little impact on this case.            The prosecution did not call
    
    Beanie as a witness, nor vouch for the reliability of the tip that
    
    he gave police.     Instead, the State mentioned this tip in passing,
    
    
                                             21
    to explain why it focused on Kyles as a suspect and discovered
    
    evidence conclusively linking him to the murder.
    
          While the defense portrayed Beanie as framing Kyles, it did
    
    not call Beanie as a defense witness.           As we will explain in
    
    Section III.B., that decision was sound.10         Calling Beanie as a
    
    witness threatened to do Kyles more harm than good, even if the
    
    defense could   show   that   details   of   Beanie's   claims   were   not
    
    consistently stated.   Since Beanie did not testify, and there was
    
    no constitutional compulsion that he should have been, the failure
    
    to possess impeachment evidence material could not, in reasonable
    
    probability, have affected the outcome of the trial. Kyles has not
    
    shown on this basis that the three statements were material.
    
          Detective Lambert testified during cross-examination that he
    
    picked up Kyles' garbage bags from the curb without apparent
    
    detection.   Kyles' residence was not under police surveillance
    
    until after sunrise the following morning.         The defense counsel
    
    used this cross-examination to establish that someone could just as
    
    easily have placed bags in that location, or put Mrs. Dye's purse
    
    into bags already there.      The defense maintained that Beanie did
    
    so.   Kyles now asserts that he could have argued this point more
    
    powerfully with two pieces of alleged Brady material.            One was a
    
    police memorandum directing officers to pick up Kyles' garbage.
    
    
          10
          As the dissent maintains, the Brady and Strickland claims
    are related, at least in part. In Section III.B., we conclude
    that defense counsel was not deficient in deciding not to call
    Beanie to testify. Beanie did not testify and impeachment
    material did not affect the trial. Our Strickland holding thus
    supports our Brady decision.
    
                                      22
    The memo stated, "[w]e have reason to believe the victim's personal
    
    papers and the Schwegmann's bags will be in the trash."   According
    
    to Kyles, Beanie was the person who gave the police reason to
    
    believe that this evidence would be found.     Kyles supports also
    
    this assertion with the transcript. In it, a police officer refers
    
    to Beanie having stated that if Kyles were smart, he would throw
    
    the items from the LTD into his garbage.   Kyles argues that these
    
    documents would have strengthened his theory that Beanie planted
    
    the purse in Kyles' garbage and directed the police to find it
    
    there.11
    
         Even without these documents, Kyles made a credible case that
    
    Beanie could have planted this evidence.     It was undisputed at
    
    trial that anyone could have had access to garbage bags sitting on
    
    the curb and that Beanie was attempting to incriminate Kyles.
    
    Kyles was able to argue that Beanie had one or more motives and an
    
    opportunity to plant this evidence where the police found it.
    
    Nonetheless, the jury rejected this argument.      These documents
    
    might have offered some assistance to Kyles.      In light of the
    
    entire record, however, we cannot conclude that they would, in
    
    reasonable probability, have moved the jury to embrace the theory
    
    it otherwise discounted.
    
         To explain the murder weapon and holster, the defense depended
    
    upon testimony that Beanie had attended a gathering at Kyles'
    
         11
           Kyles also argues that knowledge of these statements would
    have led defense counsel to call and cross-examine Beanie
    regarding the garbage bags. For reasons stated infra, section
    III.B., we fail to see how Beanie's testimony would have assisted
    Kyles.
    
                                    23
    apartment on Sunday night, September 23. Several defense witnesses
    
    stated that Beanie was present at 2313 Desire that evening, and had
    
    dinner with Kyles and others.              Johnny Burns stated that as many as
    
    18 people attended the gathering, while Cathy Brown remembered six
    
    being present.          The State questioned the credibility of these
    
    witnesses,     given     inconsistencies        among        their   statements,    but
    
    presented      no    testimony      that    this    gathering        did   not   occur.
    
    Asserting yet another Brady violation, Kyles points to the notes of
    
    prosecutor Cliff Strider's interview with Beanie.                          These notes
    
    refer to Beanie's presence at Kyles' apartment for Sunday dinner.
    
    Corroborating Beanie's presence, however, adds little credibility
    
    to an assertion that Beanie smuggled evidence in and hid it about
    
    the apartment on that occasion.
    
          Johnny Burns claimed that he came upon Beanie alone in the
    
    kitchen, stooping next to the stove under which the murder weapon
    
    was found.          During the state post-conviction hearing, the same
    
    trial court judge who presided over Kyles' trial found that Johnny
    
    Burns' testimony was not credible.                 "This Court, having had the
    
    opportunity to view Mr. Burns on the witness stand and to hear his
    
    testimony, has chosen to totally disregard everything that he has
    
    said."12    This trial court finding of fact is fairly supported by
    
    the   record    and     must   be   presumed       to   be    correct.      28   U.S.C.
    
    § 2254(d).     Even aside from § 2254, appellate courts must give due
    
          12
          Between the time of Kyles' conviction and the post-
    conviction hearing, the same trial court judge presided over the
    trial and conviction of Johnny Burns for the 1986 shooting death
    of Joseph "Beanie" Wallace. See State v. Burnes, 
    533 So. 2d 1029
    (La. Ct. App. 1988).
    
                                               24
    regard to the credibility determinations of trial judges, who enjoy
    
    the advantage of observing demeanor.      See Amadeo v. Zant, 
    486 U.S. 214
    , 
    108 S. Ct. 1771
     (1988).      Given that Johnny Burns' testimony
    
    lacked credibility, it is unlikely that the jury attached much
    
    weight to his claims.
    
          Kyles testified that Beanie offered to sell him a pistol with
    
    tape wrapped around it that evening.          The murder weapon, however,
    
    showed no signs of having been wrapped in tape.               This testimony
    
    added nothing to the theory that Beanie planted the evidence.
    
          If Beanie was present at Kyles' apartment on Sunday, this
    
    opportunity to plant evidence came after Beanie had contacted the
    
    police and implicated Kyles.      If Beanie had been bent on framing
    
    Kyles, it was risky indeed to direct officers to the residence on
    
    Desire Street before he planted the evidence.          Beanie did not know
    
    when the police might move.   Indeed, he did not plant the gun until
    
    the night of the day following his disclosure to the police.               The
    
    defense theory attributes cleverness to Beanie in every detail
    
    except this one.     Once again, we conclude that the undisclosed
    
    documents would have been essentially cumulative on a point that
    
    the   prosecution   questioned,   but   did    not   rebut.     We   are   not
    
    persuaded that these notes were material.
    
          Kyles complains that he did not receive a computer printout
    
    containing a list of automobile license plates.               This printout
    
    listed cars that were in Schwegmann's parking lot at 9:15 p.m. on
    
    the day of the murder, September 20.           The list does not include
    
    Kyles' automobile.      Beanie's initial statements to the police
    
    
                                       25
    indicated that Kyles had retrieved his car from Schwegmann's on
    
    Friday.    Using a photograph of the crime scene taken Thursday
    
    afternoon, the prosecution argued that Kyles car was visible at a
    
    distant edge of the lot.           Kyles argues that the undisclosed
    
    printout would have rebutted this evidence, showing the jury that
    
    his car was not present at the crime scene.
    
          During post-conviction proceedings, Detective John Miller
    
    testified that not all vehicles were included in the canvas and
    
    license check that produced the printout.            Thus, the printout did
    
    not disprove that Kyles' car was present at 9:15 p.m.              Moreover, a
    
    list of cars found at 9:15 p.m. could not disprove that Kyles'
    
    automobile is the one visible in the photograph taken at the crime
    
    scene roughly six hours earlier.13         Although the prosecution used
    
    the photograph to establish how Kyles arrived at Schwegmann's,
    
    before departing in the stolen LTD, no witness stated that Kyles'
    
    car   remained   there      overnight.    Thus,      the   printout   was   not
    
    inconsistent with the State's proof of guilt. More importantly, of
    
    course,    we   are   not   persuaded    that   it   would,   in   reasonable
    
    probability, have induced reasonable doubt where the jury did not
    
    find it.   The evidence of guilt was otherwise so overwhelming that
    
    the rebuttal of the photograph would have made no difference.
    
          Finally, in assessing the probable effect of nondisclosure on
    
    Kyles' trial, we must consider evidence of guilt that is untouched
    
    
          13
          As Kyles has seized upon in these proceedings, prosecuting
    attorney Strider's notes reflect that Beanie and Kyles retrieved
    Kyles' car from the Schwegmann's parking lot at 7:45 p.m. on
    Thursday.
    
                                         26
    by the alleged Brady violations. First, we consider the ammunition
    
    found in his apartment.   Kyles claimed that Beanie gave him the two
    
    boxes of ammunition along with a .22 caliber rifle as security for
    
    a loan.   He had loaded .22 caliber rounds into the rifle and left
    
    the other assorted ammunition in the boxes.        He testified that
    
    Beanie often had guns, accounting for the other calibers, including
    
    the large number of .32 caliber rounds.     While the evidence seized
    
    included mixed caliber rounds in one box, another box contained
    
    only .32 caliber cartridges. It makes sense that Beanie would have
    
    given Kyles a container holding .22 ammunition, along with other
    
    rounds, at the same time that he gave Kyles a .22 rifle.    It is not
    
    clear, however, why someone would also have given Kyles a box
    
    containing only .32 caliber rounds if Kyles did not own a .32
    
    caliber firearm.    The more likely inference, apparently chosen by
    
    the jury, is that Kyles possessed .32 caliber ammunition because he
    
    possessed a .32 caliber firearm.      As noted, these rounds were the
    
    same brand as those found loaded in the murder weapon found in
    
    Kyles' residence.
    
         It must not be forgotten that Kyles had to explain his
    
    possession of every piece of the incriminating evidence.     Yet, no
    
    undisclosed document lessens the impact of the evidence regarding
    
    pet food from Schwegmann's.        Kyles tried to account for its
    
    presence, but likely did his cause more harm than good.        Kyles
    
    testified that he purchased at Schwegmann's the pet food found in
    
    his apartment.   He must dismiss as coincidence the fact that Mrs.
    
    Dye usually purchased the same brands that he claimed to have
    
    
                                     27
    chosen on one occasion because they were "on sale."                   In the first
    
    place,     the   weight   of     his   explanation    was     undermined   by   his
    
    inability to explain what pets he planned to feed.                  He claimed to
    
    have kept a dog in the backyard, although it was sometimes kept in
    
    the country.       Kyles stated that he had brought it home shortly
    
    before the murder.        Police, however, found no sign of this pet.             A
    
    friend of Kyles, Donald Powell, had not seen the dog for six
    
    months. When asked to explain why he purchased different brands of
    
    cat food, Kyles claimed that one was for his son's cat, the other
    
    for strays.      He did not explain any reason, such as a lower price
    
    for the latter, for making this distinction.14                 Most importantly,
    
    Kyles'      explanation    for    the    choice     and    quantity    suffered   a
    
    devastating attack from the State when it called Schwegmann's
    
    director of advertising. The brands found in Kyles' residence were
    
    not   "on    sale"   in    September      1984.15         During   post-conviction
    
    proceedings, the state trial court cited this rebuttal evidence in
    
    concluding that Kyles had perjured himself at trial, and opined
    
    that the jury was moved to disregard the defense's theory when
    
    Kyles' testimony was thus discredited.
    
    
          14
          In contrast, the victim's husband explained that their
    finicky cats would not eat the same brands, causing them to
    purchase a variety.
          15
          The effort to recast Kyles' explanation as meaning "for
    sale" rather than "on sale" makes no sense in context. All
    brands of pet food were "for sale," so that interpretation cannot
    explain why Kyles choose Kal-Kan and Nine Lives. Nor would it
    explain why he brought home more than a dozen cans at one time
    for two family pets. The common meaning of "on sale"--marked
    down--would provide such explanations, but was contradicted by
    the Schwegmann's employee.
    
                                             28
         As   the   state     trial   court   found,   in   post-conviction
    
    proceedings:
    
         the Defense was given ample opportunity, and successfully
         placed before the jury through credible evidence, the
         basic premise of the Defense's case, that Joseph [Beanie]
         Wallace was in fact that killer of Mrs. Dye and that
         Joseph Wallace "framed" the defendant for this killing.
         . . .
               The jury was more than adequately exposed to the
         possibility that Joseph Wallace was in fact the killer.
    
         The jury, however, refused to believe this testimony or to
    
    infer even reasonable doubt from it.      Kyles received a fair trial,
    
    one whose outcome is reliable.          Kyles failed to undermine the
    
    overwhelming evidence of guilt at trial, and we are not persuaded
    
    that it is reasonably probable that the jury would have found in
    
    Kyles' favor if exposed to any or all of the undisclosed materials.
    
    Often cumulative and generally inconclusive, the facts therein
    
    simply do not add enough to his case.16
    
         Finally, we note that Brady claims are subject to harmless
    
    error review.   See United States v. Garcia, 
    917 F.2d 1370
    , 1375
    
    (5th Cir. 1990).        Since Kyles has failed to show that it is
    
    reasonably probable that the nondisclosure of documents affected
    
    the outcome of his trial, we will not address whether he can show
    
    
         16
          Judge King attaches significance to the fact that Kyles'
    first trial resulted in a mistrial. The first jury deadlocked in
    this capital case in just four hours. We can only speculate as
    to the reason. While some jurors may have seen the prosecution's
    case as weak, it is also possible that a juror's concerns about
    capital punishment promptly caused the intractable disagreement.
    We attach little significance to an event whose cause is
    unknowable, and rely instead upon our review of the record, as
    informed by the judgments of the state trial court and district
    court. Whatever the proof offered in that trial, this transcript
    contains overwhelming evidence of guilt.
    
                                       29
    the actual prejudice of a substantial and injurious effect on the
    
    verdict.    See Brecht v. Abrahamson, 
    113 S. Ct. 1710
    , 1722 (1993).
    
                                   B. Strickland
    
         Kyles also contends that he received ineffective assistance of
    
    counsel at trial.   See Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
     (1984). Kyles points to two principal errors allegedly
    
    committed by his trial counsel:             failing to interview Beanie and
    
    failing to call Beanie as a defense witness.                Under Strickland,
    
    Kyles must satisfy a two-prong test by showing that:                (1) counsel's
    
    performance was so deficient that he was not functioning as the
    
    counsel guaranteed by the Sixth Amendment, and (2) counsel's errors
    
    prejudiced the defense by depriving the defendant of a fair trial
    
    whose result is reliable.        Id. at 687, 104 S. Ct. at 2064.               To
    
    demonstrate professional deficiency, Kyles must show that counsel's
    
    performance "fell below an objective standard of reasonableness."
    
    Id. at 688, 104 S. Ct. at 2064.               Given the difficulty of this
    
    evaluation and the distorting effect of hindsight, "a court must
    
    indulge a strong presumption that counsel's conduct falls within
    
    the wide range of reasonable professional assistance; that is, the
    
    defendant    must   overcome     the        presumption     that,     under   the
    
    circumstances, the challenged action might be considered sound
    
    trial strategy."      Id. at 689, 104 S. Ct. at 2065 (internal
    
    quotation omitted).
    
         Kyles' trial counsel was Martin Regan.               Kyles maintains that
    
    Regan's failure to call Beanie--coupled with the prosecution's
    
    nondisclosure of the contents of Beanie's statements--prevented the
    
    
                                           30
    defense from attacking Beanie's credibility.                 The prosecution's
    
    case, however, did not depend upon Beanie's credibility. The State
    
    did    not   call   Beanie    to   testify    against     Kyles.      Prosecution
    
    witnesses did not mention Beanie by name except in response to the
    
    cross-examination by Regan.         Regan asked eyewitnesses whether they
    
    had been shown Beanie and questioned Detective Dillman about him.
    
    Then, during redirect testimony, Dillman admitted that the police
    
    had no suspect until after Beanie contacted them on Saturday,
    
    September 24.       During his direct examination, Dillman had only
    
    alluded to Beanie's statements by testifying that officers received
    
    information that led them to Mrs. Dye's car, and that caused them
    
    to    suspect   Kyles.       Leaving   this   testimony     unelaborated,     the
    
    prosecution depended upon the eyewitness identifications and the
    
    tangible evidence to link Kyles with the murder.
    
           Of course, the defense did involve Beanie in the case by
    
    presenting the theory that Beanie had a motive to frame Kyles and
    
    an    opportunity    to   plant    evidence    on   his   premises.       Regan's
    
    questions laid the foundation supporting this theory.                   Regan did
    
    not, however, call Beanie as a defense witness.                    As a matter of
    
    trial strategy, the choice of witnesses enjoys a presumption of
    
    reasonableness.      Cf. Rivera v. Collins, 
    934 F.2d 658
    , 660 (5th Cir.
    
    1991) (rejecting Strickland claim asserting counsel failed to call
    
    important witnesses).         We are not persuaded that the decision not
    
    to call Beanie was an unreasonable one outside the bounds of
    
    professional judgment.         To the contrary, the dangers of calling
    
    Beanie as a defense witness are very evident.                  As the district
    
    
                                           31
    court put it, any reasonable attorney would perceive Beanie as a
    
    "loose cannon." According to the defense theory, Beanie was intent
    
    on seeing Kyles convicted for the murder of Mrs. Dye.                        Beanie's
    
    testimony almost certainly would have inculpated Kyles.17                      All of
    
    his statements to the police claimed that Kyles had possessed the
    
    LTD, sold it, and removed several Schwegmann's grocery sacks from
    
    it--testimony not presented to the jury during the prosecution's
    
    case-in-chief.      The only exculpatory effect Beanie could have was
    
    an indirect one:          Kyles maintains that competent counsel, armed
    
    with Beanie's prior statements, would have thoroughly impeached
    
    Beanie's credibility.         At the same time, competent counsel would
    
    realize the risk that if Beanie's credibility were not completely
    
    destroyed   by      his    demeanor    and        prior      statements,    then    his
    
    incriminating testimony would have strengthened the prosecution's
    
    case. The cross examination of Beanie had to face the reality that
    
    his version was supported by disinterested eye witnesses.                          Only
    
    hindsight allows one to say that Kyles had nothing to lose and that
    
    counsel should have taken that risk.                 See United States v. Lauga,
    
    
    762 F.2d 1288
    , 1291 (5th Cir. 1985) (decision not unreasonable just
    
    "because    20/20     hindsight       and        knowledge     of   the    intervening
    
    conviction might lead another attorney to opt otherwise").18 Beanie
    
         17
          No reasonable attorney, believing that Beanie framed his
    client for murder, would have expected Beanie to take the stand
    and--as the district court said--give a "Perry Mason confession."
         18
          "A fair assessment of attorney performance requires that
    every effort be made to eliminate the distorting effects of
    hindsight, to reconstruct the circumstances of counsel's
    challenged conduct, and to evaluate the conduct from counsel's
    perspective at the time." Strickland, 466 U.S. at 689, 104 S.
    
                                                32
    was a two-edged sword, and we conclude that Regan did not act
    
    unprofessionally in choosing not to draw that weapon at trial.
    
           During post-conviction hearings, Regan stated that the reason
    
    he did not call Beanie to testify was his misunderstanding of
    
    Louisiana evidence law.          He believed that if the defense called
    
    Beanie, he would not be able to ask leading questions unless he
    
    demonstrated       both    surprise    and    hostility.    That     belief   was
    
    erroneous,19 thus Kyles contends that a decision made on that
    
    mistaken basis was a professional deficiency.                     The Strickland
    
    analysis, however, judges the conduct of the defense according to
    
    the objective standard of the reasonable attorney.                For the above-
    
    stated reasons, we conclude that a reasonable, competent attorney
    
    would not have erred in failing to call Beanie to testify and
    
    therefore the actual cause of trial counsel's failure to do so is
    
    not controlling.
    
           Furthermore, the record demonstrates that Regan seriously
    
    considered       calling   Beanie.      The    defense   placed    Beanie   under
    
    subpoena during the trial.          See State v. Kyles, 
    513 So. 2d 265
    , 273
    
    (La.    1987).      During    the    post-conviction     hearing,    prosecuting
    
    attorney Strider testified that Regan discussed calling Beanie as
    
    a defense witness with him. The defense, however, had no guarantee
    
    
    
    Ct. at 2065.
           19
          In dicta in the direct appeal decision, the Louisiana
    Supreme Court stated that Beanie "was clearly a witness hostile
    to the defendant, and defense counsel was entitled to employ
    leading questions and to impeach the witness through any prior
    inconsistent statements." State v. Kyles, 
    513 So. 2d 265
    , 273
    (La. 1987).
    
                                            33
    about Beanie's behavior.   Strider told Regan that he was not sure
    
    Beanie's attitude would be hostile.        Moreover, Strider stated his
    
    belief that Regan expected the prosecution to call Beanie to
    
    testify during rebuttal, giving Regan a certain opportunity to lead
    
    and impeach the witness.   Having considered the issue, Regan made
    
    a reasonable choice, and an appropriate one even if he correctly
    
    understood the applicable evidentiary rule.
    
         Since Beanie did not testify and we are not convinced that he
    
    should have been called to testify, Regan's failure to interview
    
    Beanie had no apparent bearing on the conduct of the trial.            It is
    
    not evident how interviewing Beanie would have allowed Regan to
    
    attack the prosecution's case more effectively, since that case did
    
    not rely upon Beanie's statements.         An error by counsel does not
    
    satisfy the prejudice element of Strickland unless the defendant
    
    shows a reasonable probability that, but for the error, the result
    
    of the proceeding would have been different.       Strickland, 466 U.S.
    
    at 694, 104 S. Ct. at 2068.   Regardless of whether the failure to
    
    interview   Beanie   constituted    a    professional    deficiency,     the
    
    requisite prejudice has not been shown.
    
         Finally, Kyles suggested that Regan's failure to interview the
    
    eyewitnesses prior to trial led to ineffective assistance.               One
    
    month before the trial, however, defense counsel cross-examined
    
    three of those four witnesses during the pretrial suppression
    
    hearing.    Territo,   Smallwood,    and    Williams    testified   at   the
    
    suppression hearing because they made out-of-court identifications
    
    based upon a photographic lineup.          We agree with the district
    
    
                                        34
    court's conclusion that this hearing gave counsel an adequate
    
    opportunity to explore these witnesses' stories. Since counsel was
    
    not unprepared for the eyewitness testimony at trial, there is no
    
    probability that this alleged failure had an impact on the outcome.
    
                                      IV
    
         In conclusion, we iterate that trial counsel presented Kyles'
    
    theory that Beanie framed him. The defense suggested motives, with
    
    claims of Beanie's sexual interest in Kyles' common-law wife and by
    
    implying Beanie's own guilt for the murder.       Counsel established
    
    that Beanie could have had access to Kyles' garbage bags on Desire
    
    Street.   Defense witnesses claimed that Beanie came to Kyles'
    
    apartment on the night before the police search, and Johnny Burns
    
    testified to seeing Beanie stooping near the stove under which the
    
    murder weapon was found.     The defense proposed the inference that
    
    Beanie framed Kyles.   We are not persuaded that either errors by
    
    counsel or   prosecutorial    misconduct   hamstrung   Kyles'   defense.
    
    Rather, the jury rejected his defensive theory and viewed the
    
    overwhelming incriminating evidence as proof of Kyles' guilt.        We
    
    are not empowered to substitute our own judgment or sense of
    
    fairness for the jury's.
    
         AFFIRMED.
    
    
    
    KING, Circuit Judge, dissenting:
    
        With deference to my distinguished and able colleagues in the
    
    majority, I dissent from their affirmance of the district court's
    
    denial of the writ of habeas corpus.        For the first time in my
    
    
                                      35
    fourteen years on this court -- during which I have participated in
    
    the decision of literally dozens of capital habeas cases -- I have
    
    serious reservations about whether the State has sentenced to death
    
    the right man.     My reservations are directly relevant to the two
    
    main constitutional claims that Kyles has raised -- an ineffective-
    
    assistance-of-counsel claim20 and a Brady claim.21        Both claims are
    
    governed by a standard that asks whether there is a "reasonable
    
    probability" that, but for the constitutional infirmities at trial,
    
    "the result of the proceeding would have been different."         United
    
    States v. Bagley, 
    473 U.S. 667
    , 682 (1985) (citing Strickland v.
    
    Washington, 466 U.S. at 694).       A "reasonable probability" is one
    
    that is "sufficient to undermine confidence in the outcome."         Id.
    
    
    
         An exhaustive examination of the entire record in this case
    
    was necessary to properly assess my degree of confidence in the
    
    verdict.     After such a review -- of both evidence introduced at
    
    trial and the evidence that should have been presented -- I
    
    conclude that Kyles has shown both that his trial lawyer was
    
    constitutionally ineffective and that the State failed to disclose
    
    material exculpatory and impeachment evidence.        Individually, and
    
    particularly     when   taken   together,   these   two   constitutional
    
    violations have undermined my confidence in the jury's verdict.
    
    Unlike the majority, I believe that, when the constitutional
    
    
    
         20
              See Strickland v. Washington, 
    466 U.S. 668
     (1984).
         21
              See Brady v. Maryland, 
    373 U.S. 83
     (1963).
    
                                        36
    violations in this case are considered, there is by no means
    
    "overwhelming evidence" of Kyles' guilt.
    
                                            I.
    
        What follows is a detailed summary of the facts garnered from
    
    the record,22 paying due deference to the Louisiana Supreme Court's
    
    opinion on direct appeal, the state trial court's findings of fact
    
    issued in denying Kyles' petition for state habeas relief, and the
    
    federal district court's findings of fact issued in denying Kyles'
    
    petition for federal habeas relief.23
    
    A. Events leading up to trial
    
        At approximately 2:00 p.m. on Thursday, September 20, 1984,
    
    Dolores Dye, a sixty year-old white female, finished her shopping
    
    at a Schwegmann Bros. grocery store in New Orleans.24 As she walked
    
    to her car in the store's parking lot, she toted a number of bags
    
    of groceries and her purse.     According to police statements taken
    
    from eyewitnesses, after Mrs. Dye placed some or all of her
    
    groceries and her purse into the trunk of her red two-door Ford
    
    LTD, a young black man approached her and a struggle ensued,
    
    apparently over the keys to Mrs. Dye's car.    The assailant wrestled
    
    her to the ground.    When Mrs. Dye screamed and attempted to escape,
    
    the robber grabbed her arm, drew a small dark colored revolver from
    
    
         22
           Except as specifically noted, all of the evidence
    discussed herein was adduced and thoroughly explored at the state
    court post-conviction evidentiary hearing.
         23
              See 28 U.S.C. § 2254(d); FED. R. CIV. P. 52.
         24
           Schwegmann Bros. is a large chain of grocery stores, many
    of which are located in New Orleans.
    
                                       37
    his waistband, and fired it into her left temple, killing her
    
    instantly.25    The gunman then took the keys from Mrs. Dye's hand,
    
    ran to her car, and drove away.
    
        There were a number of eyewitnesses to the crime.         New Orleans
    
    police took contemporaneous witness statements from at least six
    
    persons, statements which were first provided in connection with
    
    the state court post-conviction evidentiary hearing.26            Almost all
    
    of the witnesses stated that the murderer was a black man with hair
    
    variously described as "platted," "in platts," or "braided," as
    
    distinguished    from   a   combed-out   "Afro"   hair   style.     Certain
    
    discrepancies in the various statements are notable.27
    
        New Orleans police had no leads until the following Saturday,
    
    September 22, 1984 -- two days after the murder -- when Joseph
    
    
         25
           The bullet was later determined to have been fired from a
    .32 caliber pistol.
         26
           Those statements were taken from Edward Williams, Isaac
    Smallwood, Lionel Plick, Robert Territo, Willie Jones, and Henry
    Williams. Of those persons, only Smallwood, Territo, and Henry
    Williams testified at trial.
         27
            Isaac Smallwood described Mrs. Dye's assailant as "a
    black man . . . [about 17 or 18[.] He was dark complexted
    [sic][.] He had a light moustache, and braided hair. The braids
    looked like they went down to his shoulders." Lionel Plick
    described the assailant as being "about in his 20's[.] He was
    about 5'10' tall, slender build . . . ." Robert Territo
    similarly described the murderer as "about twenty-eight years
    old, close to six feet tall, slim build, dark skinned . . . ."
    Willie Jones described Mrs. Dye's assailant as "a black male,
    about seventeen or eighteen years old[.] He was about five feet-
    nine inches tall and weighed about one hundred and forty pounds.
    He was dark skinned and his hair was platted." Henry Williams
    described the assailant as "a black male, about 19 or 20 years
    old, about 5'4" or 5'5", about 140 to 150 lbs., medium build,
    dark complexion, his hair looks like it was platted, it was
    short."
    
                                        38
    "Beanie" Wallace28 informed police investigators that he could
    
    supply them with a valuable lead in the Dye murder regarding a man
    
    only identified as "Curtis."29             Detective Ray Miller and his
    
    supervisor, Sergeant James Eaton, met with Wallace at approximately
    
    11:00 p.m. in the same general neighborhood where the murder
    
    occurred.      In a lengthy tape-recorded conversation30 that was first
    
    made known to the defense during the state court post-conviction
    
    proceedings, Wallace told Miller and Eaton that he (Wallace) lived
    
    with Curtis' brother-in-law, whom Wallace repeatedly described as
    
    his "partner."31 According to Wallace, on the previous day, Friday,
    
    September 21, 1984, he had purchased a red Ford LTD from Curtis for
    
    $400 at approximately 6:00 p.m. Wallace stated that Curtis had not
    
    confessed to the murder and, in fact, had never even told Wallace
    
    that    the    car   was   stolen.   However,   Wallace   stated   that   his
    
    relatives had informed him that the local newspapers and television
    
    had reported the Dye murder and had also shown pictures of the red
    
    Ford.       Hence, Wallace stated, this discovery prompted him to
    
    contact the police.32        In response to police questioning, Wallace
    
           28
           In his conversation with the police, Wallace assumed one
    of his various aliases, "Joseph Banks."
           29
                "Curtis" was later identified as Curtis Lee Kyles.
           30
           Wallace was not aware that the conversation was being
    recorded.
           31
           That person was later identified as Johnny Burnes, the
    brother of Curtis Lee Kyles' common-law wife or girlfriend,
    "Pinkie" Burnes.
           32
           In their habeas corpus pleadings, the State has claimed
    that Wallace had previously served as a police informant;
    however, the tape-recorded conversation reveals that the New
    
                                          39
    described Curtis as a tall, "real skinny" black man, approximately
    
    twenty-five years old, "with a bush" hair style.33
    
         Wallace also claimed that on the same Friday, he, Curtis, and
    
    Curtis' brother-in-law had unloaded numerous bags of Schwegmann
    
    Bros.'s groceries and a woman's brown purse from the stolen red
    
    car's back seat and trunk.   According to Wallace, they then placed
    
    the items in the home of Curtis' common-law wife, "Pinkie" Burnes,
    
    where Curtis frequently stayed.34     Wallace claimed that they later
    
    went to Schwegmann Bros.'s parking lot at approximately 9:00 p.m.
    
    on Friday in order to retrieve Kyles' automobile, which Wallace
    
    
    
    
    Orleans police not only were unaware of Wallace's true name but
    also of his criminal history. In response to police questioning,
    Wallace claimed that he had been arrested only once, for
    "fighting." In fact, as was revealed at the state court post-
    conviction hearing, Wallace had been convicted as an accessory to
    another robbery/murder in New Orleans in the early 1980s. The
    habeas record also contains a transcript of a police interview
    with Wallace that was recorded four days after Curtis Lee Kyles
    was sentenced to death for the murder of Dolores Dye. In that
    statement, Wallace confesses that he participated in an unrelated
    1984 robbery/murder of an elderly woman in her New Orleans home.
    Wallace admitted that it was his handgun that was used to kill
    the other woman, but denied that he was the triggerman. Wallace
    was never prosecuted for his involvement in that murder.
         33
           At one point in the conversation, Wallace described
    Curtis as wearing a "bush" generally; he also specifically
    described Curtis as wearing a "bush" on the day on which Curtis
    allegedly sold the car to Wallace. In response to specific
    police questioning, Wallace also stated that Curtis would
    sometimes wear his hair in plaits.
         34
           At trial, numerous witnesses referred to the relationship
    as a common-law marriage. Kyles is also the father of five of
    Pinkie Burnes' children. Although he often spent the night at
    other locations, Kyles spent a substantial portion of his time
    before his arrest cohabitating with Pinkie Burnes at the
    apartment which she leased.
    
                                     40
    described as an orange Ford.35          Wallace further stated that "I
    
    betcha I can get in a lot of trouble with this shit, huh," to which
    
    the police officers responded by repeatedly assuring Wallace that
    
    he would not be arrested and that, to the contrary, Wallace had
    
    done "the right thing."   Wallace stated that his fear stemmed from
    
    the fact that he had been seen driving Mrs. Dye's car on Friday
    
    night through the French Quarter of New Orleans.              Wallace also
    
    admitted that he had changed the license plates on Mrs. Dye's car.36
    
    Later in the conversation, Wallace became more confident, reminding
    
    the police that "I ain't doing all this for nothing, you know."
    
    The police responded by repeatedly promising that Wallace would not
    
    lose the $400 that he claimed he paid for the car as a result of
    
    the police's confiscation.
    
              Also noteworthy in the tape-recorded conversation was
    
    Wallace's eagerness to help the police build a case against Curtis
    
    Lee Kyles.     Wallace   stated   that    Kyles   regularly   carried   two
    
    handguns, a .32 and a .38 caliber.         Wallace admonished Detective
    
    Miller that "if you can set him up good, you can get the same gun"
    
         35
           At trial, there was evidence that Kyles in fact owned a
    rust-colored Mercury.
         36
            Although the State, at trial and afterwards, has
    consistently disputed that Wallace in fact changed the plates,
    the tape recording makes it clear that Wallace did change the
    plates. In response to a question from Detective Miller asking
    "[y]ou changed the plates on it, huh," Wallace sarcastically
    responded "[y]ou never know." Later in the conversation,
    Detective Miller repeatedly informed other police officers that
    "[h]e changed the plate" -- statements in which Wallace fully
    acquiesced. Furthermore, as discussed, infra, in a subsequent
    conversation between Wallace and the chief trial prosecutor,
    Cliff Strider, Wallace again admitted that he had changed the
    plates.
    
                                       41
    that was used to kill Mrs. Dye. (emphasis added).     Wallace also
    
    accompanied the police to Schwegmann Bros., where Wallace showed
    
    police the location where Curtis had supposedly parked his car,
    
    which was not retrieved until the day after the murder, according
    
    to Wallace.   Wallace specifically pointed out that the car was
    
    parked "on the same side where the woman was killed at."     He also
    
    claimed that Curtis "had a brown pocketbook" or "purse"37 that he
    
    retrieved from the bushes at Schwegmann Bros.   Wallace pointed to
    
    bushes where Curtis had allegedly retrieved the purse.     Wallace
    
    claimed that "he's [Curtis] got it . . . at home [in a] chifferrobe
    
    [sic]." Wallace informed Sergeant Eaton that Curtis' "garbage goes
    
    out tomorrow" and "if [Curtis] is smart he'll put [the purse] in
    
    [the] garbage."38
    
         37
           Wallace originally referred to it as "pocketbook" but,
    when asked by the police, stated that it was in fact a "purse . .
    . like a purse." I observe that the record contains a photograph
    of a single brown leather woman's handbag, which was identified
    as belonging to Mrs. Dye.
         38
           On the tape itself, Sergeant Eaton actually makes the
    statement -- quoting Beanie Wallace -- in response to a question
    from Detective Miller. Wallace's actual statement is inaudible
    due to intense static. Eaton's quoting Wallace, however, is
    apparent from the tape.   Moreover, at the state court post-
    conviction evidentiary hearing, Eaton testified as follows in
    response to questions from Kyles' state habeas counsel:
    
         Q. Do you have any recollection now as to why you
         [said] you had reason to believe the victim's [personal
         effects] would be in the trash?
    
         A. I sure do.
    
         . . .
    
         Q. What it that?
    
         A. . . . The subject Detective Miller had interviewed
    
                                    42
          Wallace was then taken to police headquarters where he was
    
    again interviewed by New Orleans police, this time by Detective
    
    John C. Miller.39   The written statement, which was not disclosed
    
    by the State until the state court post-conviction proceedings,
    
    indicates that the interview began at 12:55 a.m., Sunday, September
    
    23, 1984.   The statement repeats the essentials given earlier, but
    
    one portion, which concerns Wallace's version of events on Friday
    
    night, merits full quotation:
    
         Curtis had called his brother-in-law, Claude Burn[e]s,
         they call him John. I took a ride with Claude over to
         Curtis' house on Desire Street.      We went inside and
         Calude [sic] went in the back of the house to talk to
         Curtis' old lady[,] Pinkie [Burnes, Johnny Burnes'
         sister]. Then he came and we took another ride to Mazant
         St.   That's where Curtis was with the car.        . . .
         [Curtis] was standing next to the car, [and] he asked me
         if I wanted to buy it and he gave me the keys. See, I
         was supposed to buy his car, but he said that he wanted
         to sell me the [red] ford because he was going to give it
         to his old lady, but he got mad at her and wanted to sell
         it. I was going to give him the four hundred dollars for
         his car but I like the ford better so he sold me that
    
    
         [i.e., Wallace, assuming the alias "Joseph Banks"]
         see[n] Curtis Kyles with a purse. I had asked him
         [about] the disposition of the purse, what [did] Curtis
         do with the purse. . . . He says, "He probably threw
         it away." . . . He suggested that probably he'd throw
         it in his garbage . . . .
    
         Q. When you say "he," you mean Beanie?
    
         A. Beanie had suggested that Curtis probably would
         throw it away in his garbage. I made the statement, to
         my knowledge, which is transcribed, telling Detective
         Miller when he asked me what he did say -- Detective
         Miller had removed himself from the car and was
         searching the area. He [Miller] asked me what did he
         [Beanie] say, and I said "He said he'd probably throw
         it in the garbage . . . ."
         39
           Detective John C. Miller and Detective Ray Miller are
    apparently different persons.
    
                                     43
         one. He asked me to help him unload the ford, because he
         had grocery's in the Schwegmann bags in the trunk and on
         the back seat. We took the spare tire out and the jack
         and put it in his car. After we took everything out he
         took a brown purse out of the ford, from the front seat.
         He said that it was his old lady's purse. Then I got in
         the ford and I drove over back to his house on Desire St.
         [H]e rode with some friends of his to his house and we
         met on Desire by his house. That's when I helped him
         unload his car and bring the grocery's inside his house.
         . . . After that I just left. [sic passim].
    
    Wallace then reiterated his claim that approximately three hours
    
    later, at 9:30 p.m. on the same Friday night, Curtis "called his
    
    brother-in-law" at the residence "where I stay and I went for the
    
    ride.     We went to Curtis' house and picked him up and went back to
    
    Schwegmann . . . [to] pick up his car, because he said that it
    
    didn'[t] want to start. . .    .   It was in the Schwegmann's parking
    
    lot . . . [where] he picked up a pocket book he had by the
    
    building.     [I]t was a big brown pocket book."
    
         In a third pre-trial interview -- between the State's chief
    
    trial prosecutor, Cliff Strider, and Wallace -- Wallace's version
    
    of the events of Friday, September 22, 1984, had changed again.40
    
    Like the other two statements, this one was not disclosed to the
    
    defense until Kyles' conviction and death sentence had become
    
    final. Rather than allegedly picking up Curtis Kyles' car from the
    
    Schwegmann Bros.'s parking lot on Friday, Wallace claimed that he,
    
    
         40
           The precise date of this interview is unknown, but
    apparently it occurred around the time of the two trials in late
    1984. It is undisputed that the interview in fact happened. At
    the state court post-conviction hearing, Kyles' counsel offered
    into the record the five pages of notes, which were discovered in
    the New Orleans District Attorney's file and which were
    identified as having been written by the State's chief trial
    prosecutor, Cliff Strider.
    
                                       44
    Curtis, Johnny Burnes, and another man (identified as "Black")41
    
    drove to the supermarket parking lot on Thursday, in the early
    
    evening.42    That is, in the third interview, Wallace claimed that
    
    they retrieved Kyles' car during the early evening of the same day
    
    Mrs. Dye was murdered.            Strider's notes then recount that at
    
    approximately 7:45 p.m.,43 the group drove to "Black's house" where
    
    Kyles, Black, and Johnny Burnes supposedly left Wallace in the car
    
    and proceeded to go inside.            Approximately ten minutes later,
    
    according to Wallace, the others returned carrying groceries and a
    
    brown purse.      The group then returned to Pinkie Burnes' apartment,
    
    where the groceries were unloaded once again.               After a night of
    
    drinking and smoking marijuana, the group allegedly broke up around
    
    midnight.
    
         The next portion of Strider's notes are subtitled "Friday" and
    
    begin at "11:00," presumably 11:00 a.m. from the context of the
    
    notes.       It   is   then,   according    to   this   version   of   Wallace's
    
    statement, that Curtis allegedly sold the red Ford to Wallace.               The
    
    notes state that Wallace spent the remainder of the day and most of
    
    the night driving around New Orleans. Wallace returned to the home
    
    
         41
           At trial, one of the defense witnesses was named Kevin
    Black, who, the prosecution argued, assisted Kyles, Wallace, and
    Johnny Burnes in retrieving Kyles' car from Schwegmann Bros.
         42
           Strider's notes indicate that the group drove to
    Schwegmann Bros. between 5:00 and 7:30 p.m.
         43
           Strider's notes do not specify a.m. or p.m., but
    presumably refer to 7:45 p.m., as is apparent not only from the
    context of the notes but also from a reference to the term "dark"
    written next to "7:30-7:45." Furthermore, Mrs. Dye was not
    murdered until 2:20 p.m. on Thursday.
    
                                           45
    at   which    he   was   staying     at    approximately    4:00    a.m.   Saturday
    
    morning.
    
            The next portion of the notes are subtitled "Saturday" and
    
    begin at 10:00 a.m.          Wallace recounted that he changed the license
    
    plates on the car that morning. By that afternoon, Strider's notes
    
    state, "B[eanie] put everything together."                 He then "called Miss
    
    Williams," who was apparently a contact at the New Orleans Police
    
    Department. By approximately 9:00 p.m., Wallace met with Detective
    
    Ray Miller and Sergeant Eaton -- which comports with the contents
    
    of the undisclosed tape (discussed supra).                 Strider's notes then
    
    refer to the second police interview that ended early Sunday
    
    morning, at approximately 2:30 a.m. (discussed supra).
    
         The next portion of Strider's notes are subtitled "Sunday" and
    
    begin at noon (12:00 p.m.), when the notes refer to a call from
    
    "Miss Williams" to Wallace.           Williams "asked about gun -- B[eanie]
    
    said he will find out -- B[eanie] will call back."                  The notes then
    
    state      that    Wallace    went    to    Pinkie   Burnes'       apartment   from
    
    approximately 2:00-5:00 p.m.              After leaving for approximately two
    
    hours, Wallace returned for a "Sunday dinner" at Pinkie Burnes'
    
    apartment; a number of other persons attended the dinner, including
    
    Curtis Kyles and Kevin Black.44                 At approximately 9:30 p.m. on
    
          44
           Curiously, the State has consistently disputed whether in
    fact such a "dinner party" took place. However, Strider's
    handwritten notes support Kyles' claims about the dinner party.
    Strider's notes state that Wallace recounted that on Sunday,
    September 23, 1984, Wallace "[w]ent to Pinky's about 7
    [o'clock]."   The statement recounts that Wallace and various
    other people, including Kyles and Pinkie Burnes, ate dinner.
    "[A]bout 9:00" Beanie left. I observe that at trial, police
    Detective John Dillman, who was in charge of the New Orleans
    
                                               46
    Sunday night, Wallace departed and met with Detective Miller at
    
    approximately 10:00 p.m. The two drove around "trying to pass time
    
    till [the] garbage [was] put out" at Pinkie Burnes' apartment; they
    
    "circled road till about 3:00 a.m."              As will be discussed in
    
    greater detail below, the New Orleans police picked up the garbage
    
    before dawn.
    
            Included in the state habeas record are New Orleans Police
    
    Department memoranda concerning the seizure of the garbage in front
    
    of Pinkie Burnes' apartment in the early morning hours on Monday,
    
    September 24, 1984.      These documents were not disclosed to the
    
    defense until the state court post-conviction proceedings. One of
    
    those    memoranda,   from   Sergeant    James   Eaton    to   Sergeant   Dave
    
    Morales, states that "[w]e have reason to believe that the victims
    
    [sic] personal papers and the Schwegmann's bags will be in the
    
    trash."     As discussed supra, during the original conversation
    
    between Wallace and the police, Wallace informed Sergeant Eaton
    
    that, "if [Curtis] is smart, he'll put [Mrs. Dye's purse] in the
    
    garbage."    At the state habeas evidentiary hearing, Sergeant Eaton
    
    admitted that the phrase "we have reason to believe" used in the
    
    memo specifically referred to Beanie Wallace's "tip" about the
    
    garbage.     After    police   seized    the   garbage,   a    brown   handbag
    
    containing various personal effects of Mrs. Dye was discovered in
    
    
    
    
    Police Department's investigation of the Dye murder, testified
    under oath that he knew nothing of the defense's claim that
    Beanie Wallace came to Pinkie Burnes' apartment for a Sunday
    dinner. Assistant DA Strider, who was present during that
    testimony, said nothing in response to Dillman's answer.
    
                                        47
    the   rubbish,   along   with    numerous   Schwegmann   Bros.'s   bags.
    
    
    
          Curtis Lee Kyles was arrested outside Pinkie Burnes' apartment
    
    late Monday morning.     Police proceeded to execute a search warrant
    
    of the residence. They recovered a .32 caliber revolver, which was
    
    later determined to be the murder weapon, hidden behind the stove
    
    in the kitchen. Police also recovered various types of ammunition,
    
    including sixteen .32 caliber shells that were of the same brand as
    
    the shells in the pistol.       Also recovered was what appeared to be
    
    a home-made holster for a pistol in the wardrobe in the bedroom.45
    
    Under the sink, the police discovered eight Schwegmann Bros.'s
    
    brown paper bags.   In a kitchen cabinet, police also seized cans of
    
    three popular brands of dog and cat food similar to the brands
    
    normally purchased by Mrs. Dye (according to the trial testimony of
    
    Mrs. Dye's husband). Mrs. Dye's fingerprints were not found on any
    
    of the cans of pet food.        Kyles' prints were not found on the .32
    
    caliber revolver, the brown handbag, or in or on Mrs. Dye's red
    
    Ford LTD.     However, Kyles' prints were found on a Schwegmann
    
    Bros.'s small receipt found in the red Ford LTD, although in the
    
    process of lifting the fingerprints, chemicals used by the police
    
    destroyed the face of the receipt.46        A second Schwegmann Bros.'s
    
    receipt was also found in the trunk of Mrs. Dye's car, although
    
    Kyles' fingerprints were not found on that receipt.
    
          45
           This wardrobe possibly was the "chifforobe" to which
    Wallace referred in his September 22 statement.
          46
           The police failed to record the contents of the printed
    matter on the receipt.
    
                                         48
    B. The trials
    
         In late November of 1984, Curtis Lee Kyles was put on trial
    
    for the capital murder of Dolores Dye.        Kyles professed his
    
    innocence and supplied an alibi -- claiming that he was picking up
    
    his children from school -- and offered supporting witnesses.   The
    
    entire theory of the defense was that Joseph "Beanie" Wallace had
    
    framed Kyles by planting evidence in Pinkie Burnes' apartment and
    
    garbage.   Wallace's alleged motive was three-fold: first, that
    
    Wallace, who admittedly had been seen in possession of the victim's
    
    car, wished to shift the blame to Kyles; second, that Wallace had
    
    romantic aspirations regarding Kyles' common-law wife, "Pinkie"
    
    Burnes; and, third, that Wallace wished for reward money.       The
    
    heart of the State's case was positive eyewitness testimony from
    
    four persons who were at the scene of the crime, although the State
    
    also relied on a number of pieces of circumstantial evidence.47
    
    Notably, Joseph "Beanie" Wallace did not testify as a witness for
    
    either the defense or the prosecution.       After four hours of
    
    deliberation, Kyles' jury became deadlocked on the question of
    
    guilt, and a mistrial was declared.
    
        In early December, a second trial occurred.   Again, the heart
    
    of the State's case was the unshaken testimony of four eyewitnesses
    
    who positively identified Kyles in front of the jury.   Again, the
    
    theory of the defense was that the eyewitnesses were mistaken in
    
    
    
    
         47
           Police further testified that three of those eyewitnesses
    had also picked Kyles out of a pre-trial photo line-up.
    
                                    49
    their identification of Kyles.   Further, as the Louisiana Supreme
    
    Court recounted in its opinion on direct appeal:
    
         The defense presented several witnesses who saw Wallace
         in a red car similar to the victim's about an hour after
         the killing. Other witnesses testified that Wallace had
         attempted to sell the car shortly after the murder. One
         witness observed Wallace stooping down near the stove in
         defendant's home the day before the gun was found behind
         the stove by the police. There was further testimony
         that Wallace and defendant resembled each other.
         Additionally, the defense presented testimony that
         Wallace was very romantically interested in Martina
         "Pink[ie]" Burns, defendant's [common-law wife] and the
         mother of defendant's [five] children.
    
         Finally, defendant took the stand and testified without
         contradiction that he had no prior convictions. Denying
         any involvement in the shooting, he explained his
         fingerprints on the cash register receipt [found in Mrs.
         Dye's car] by asserting that Wallace had picked him up in
         a red car [on Friday, September 21, 1984] and had taken
         him to Schwegmann's, where he purchased transmission
         fluid for his car and a pack of cigarettes. He suggested
         that the receipt may have fallen from the bag when he
         removed the package of cigarettes. . . .[48] [T]here
         was also testimony that defendant's family kept a dog and
         cat and often fed stray animals in the neighborhood.
    
         On rebuttal, the prosecutor had Wallace brought into the
         courtroom.   Each of the eyewitnesses, after viewing
         Wallace standing next to defendant, reaffirmed previous
         identifications of defendant as the murderer.[49]
    
         48
           I have been unable to locate the receipt in the record,
    although the statement of the facts indicates that it was
    admitted as a State's exhibit at trial. I observe that, at
    trial, the judge repeatedly referred to the receipt as "a small
    piece of paper." Furthermore, at oral argument, Kyles' habeas
    counsel represented to the court -- without contradiction by the
    State -- that the receipt was approximately 2" x 2".
         49
           The state court neglected to mention that the prosecution
    also offered a blown-up photograph taken at the crime scene soon
    after the murder. Prosecutors argued that a medium to dark
    colored automobile in the background of the photograph was Kyles'
    own car. Prosecutors repeatedly argued during cross-examination
    of defense witnesses that Kyles had left his own car at
    Schwegmann Bros. on the day of the murder and had retrieved it
    later. The prosecution offered no evidence or witnesses to
    
                                     50
         Kyles, 513 So.2d at 266-67.
    
    Once again, Wallace did not testify for either the State or
    
    defense.
    
    
    
    C. Evidence that has subsequently come to light
    
         During the state court post-conviction evidentiary hearing,
    
    Kyles' able habeas counsel, who replaced the defense attorney who
    
    had handled the trial and direct appeal, offered a number of items
    
    of new evidence that were discovered in the files of the New
    
    Orleans police and District Attorney's Office.    It is undisputed
    
    that this evidence was not made available to the defense at the
    
    time of trial.   Such evidence may be summarized as follows:
    
         i) Six contemporaneous eyewitness statements taken by
         police following the murder (discussed supra);
    
         ii) A tape recording of the lengthy conversation between
         Wallace and New Orleans police officers that occurred
         late in the evening on Saturday, September 22, 1984
         (discussed supra);
    
           iii) A typed and signed statement given by Wallace to
         another New Orleans police detective early in the morning
         of Sunday, September 23, 1984 (discussed supra);
    
              iv) Hand-written notes of an interview of Joseph
         "Beanie" Wallace conducted by Cliff Strider, the chief
         trial prosecutor (discussed supra); and
    
          v) A computer print-out of license plate numbers on cars
         parked in the Schwegmann Bros.'s parking lot recorded by
         New Orleans police at approximately 9:15 p.m. on
         September 20, 1984, the night of the murder.50
    
    
    support this argument besides the blown-up photograph.
         50
           Another item of somewhat less significance was revealed
    at the state court post-conviction evidentiary hearing -- a copy
    of an internal New Orleans police memorandum dated "9-20-84"
    (i.e., Thursday, the same day as the murder). The memo states
    
                                    51
        In support of Kyles' Brady claim,51 Kyles' state habeas counsel
    
    offered a copy of the lengthy pre-trial motion filed by Kyles'
    
    trial     counsel,    who    requested    that   the   State   disclose   any
    
    exculpatory or impeachment evidence. Witness statements were among
    
    Kyles' requests.       In its response to that motion, the prosecution
    
    based its denial on the claim that there was "[n]o exculpatory
    
    evidence."
    
                                           II.
    
            On appeal from the district court's denial of the writ of
    
    habeas corpus, Kyles raises two main claims: the aforementioned
    
    Brady claim     and    a    somewhat   related   ineffective-assistance-of-
    
    counsel claim.       I will address these two issues in turn.       However,
    
    because the critical issue of "materiality" in this court's Brady
    
    analysis is governed by a standard identical to that governing the
    
    
    
    that a New Orleans citizen who had apparently heard about the
    murder reported that, at approximately 7:00 p.m., a "bright red
    1980-1983 Thunderbird" in the French Quarter drove into a parking
    meter and then swerved away. (Mrs. Dye's car was a bright red
    1980 Ford LTD, which strongly resembles a Thunderbird; indeed, as
    discussed infra, at least one of the eyewitnesses to the murder
    originally described Mrs. Dye's car as a Thunderbird.) The
    citizen described the driver as "a negro male, 25 years of age,
    5'10" - 5'11" with short hair." The driver stopped and asked the
    citizen if he wanted a ride, which was declined. The citizen
    observed a "small bluesteel [i.e., dark metal, as opposed to
    nickel] revolver on the seat."   Notably, in his various
    statements to police, Beanie Wallace admitted driving Mrs. Dye's
    car around New Orleans, including the French Quarter, although he
    claimed on Friday rather than on Thursday night. Wallace also
    stated that at one point that weekend he "pulled out and hit [a]
    fence -- scratched on the passenger side." As discussed infra,
    Wallace's chronology of events between Thursday and Sunday
    significantly changed in each of his various statements given to
    police.
         51
              Brady v. Maryland, 
    373 U.S. 83
     (1963).
    
                                             52
    "prejudice"        prong     of   the    two-prong    ineffectiveness      analysis
    
    required by Strickland v. Washington,52 I will address the Brady
    
    "materiality" and Strickland "prejudice" issues together after
    
    separately analyzing the first prongs of the Strickland and Brady
    
    standards.53
    
    
    
    A. Strickland's first prong: Was trial counsel deficient?
    
           Under Strickland v. Washington, in order to prevail in raising
    
    a claim of ineffective assistance of counsel, a criminal defendant
    
    must    make      two   separate        showings:    first,   that     counsel   was
    
    "deficient," that is, that counsel did not provide "reasonably
    
    effective assistance"; and, second, that trial counsel's deficient
    
    performance "prejudiced" the defendant.                See id. 466 U.S. at 687-
    
    98.    As noted, I will limit my discussion here to the first prong
    
    of Strickland.
    
                 Of   all   of   Kyles'     specific    allegations   of    ineffective
    
    assistance on the part of his solo trial counsel, Martin Regan, I
    
    believe that counsel was deficient in only one way, albeit a
    
    particularly important way: Regan not only failed to call Joseph
    
           52
                
    466 U.S. 668
     (1984).
           53
           Compare United States v. Bagley, 
    473 U.S. 667
    , 682 (1985)
    ("The evidence is material only if there is a reasonable
    probability that, had the evidence been disclosed to the defense,
    the result of the proceeding would have been different. A
    `reasonable probability' is a probability sufficient to undermine
    confidence in the outcome."), with Strickland v. Washington, 466
    U.S. at 694 ("The defendant must show that there is a reasonable
    probability that, but for counsel's unprofessional errors, the
    result of the proceedings would have been different. A
    reasonable probability is a probability sufficient to undermine
    confidence in the outcome.").
    
                                                53
    "Beanie" Wallace as a defense witness, but even failed to interview
    
    him. At the state court post-conviction evidentiary hearing, Regan
    
    repeatedly   testified   that   the    only   reason   he   failed   to   call
    
    "Beanie" Wallace to the stand at trial or even interview him was
    
    because Regan mistakenly believed that, under Louisiana evidence
    
    law, he would have had to vouch for Wallace's credibility -- and
    
    thus could not impeach Wallace or ask him leading questions --
    
    unless Regan could show both surprise and hostility on Wallace's
    
    part.     With respect to this claim, the state trial judge found
    
    that:
    
         Much has been made of Mr. Regan's opinion that he failed
         miserably in his defense of Mr. Kyles when he chose not
         to call Joseph Wallace as a witness. Mr. Regan stated
         that he incorrectly viewed the law as saying that if
         Joseph Wallace was called as a [defense] witness he would
         have had to vouch for his credibility unless he could
         have shown hostility and surprise on the part of Mr.
         Wallace at the time that Mr. Wallace testified. This was
         the law of Louisiana at the time of both Mr. Kyles'
         trials. . . . The law of Louisiana has subsequently been
         amended . . . But at the time of Mr. Kyles' trial, under
         existing law, Defense counsel certainly made an
         intelligent and strategically correct decision not
         placing Mr. Wallace on the stand as a defense witness.
         (emphasis added).
    
    The federal district court agreed that Regan's failure to call
    
    Wallace was a reasonable strategic decision in view of Louisiana
    
    law as it then existed.54       I reject the conclusions of both the
    
         54
           The district court disagreed with the state trial court's
    conclusion that both hostility and surprise were required.
    However, the district court questioned whether Wallace would have
    been a "hostile" witness under Louisiana law. The district court
    based this conclusion on the testimony of Cliff Strider, the
    chief trial prosecutor, who testified at the state court post-
    conviction evidentiary hearing that "I told him [Regan] that I
    didn't think Beanie would get hostile. I didn't think Beanie
    would be upset." Thus, the district court held, "this court
    
                                          54
    state trial court and federal district court.    As I discuss below,
    
    I accept instead the conclusion of the Louisiana Supreme Court.
    
          At the time of trial, the plain language of the applicable
    
    state evidence rule was as follows: "No one can impeach his own
    
    witness, unless he has been taken by surprise by the testimony of
    
    such witness or unless the witness shows hostility toward him, and
    
    even then, the impeachment must be limited to evidence of prior
    
    contradictory statements." LOUISIANA REVISED STATUTES 15:487 (emphasis
    
    added).   Thus, as a matter of state law, the state trial court was
    
    mistaken.   With respect to the federal district court's additional
    
    conclusion that Regan made a "strategic" choice not to put Beanie
    
    Wallace on the stand on the ground that he likely would not prove
    
    to be "hostile," I would reject this finding as clearly erroneous.
    
    
    
        My basis for rejecting the federal district court's finding is
    
    the opinion of the Louisiana Supreme Court in State v. Kyles, 513
    
    So.2d at 273: "Wallace was clearly a witness hostile to the
    
    defendant, and defense counsel was entitled to employ leading
    
    questions and to impeach the witness through any prior inconsistent
    
    statements. . . .    Defendant's argument that he would have been
    
    required to show both hostility and surprise is clearly wrong."55
    
    
    believes that Regan made a tactical decision that was reasonable
    and well advised at the time that he decided not to place Beanie
    on the stand."
         55
           In making these observations, the state high court was
    not addressing a claim of ineffective assistance of counsel.
    Rather, on direct appeal, Regan (who remained Kyles' counsel
    until his conviction was affirmed) raised an unrelated claim in
    which he coincidentally displayed his misunderstanding of
    
                                     55
    In reliance on the opinion of the highest expositor of state law in
    
    Louisiana, I believe that Regan was deficient in failing to call
    
    Wallace to the stand because of a "clear" misunderstanding of a
    
    single, basic rule of evidence.    Regan's entire strategy at trial
    
    was to argue that Wallace framed Kyles; his failure to call
    
    Wallace, who was present at trial and available to testify, was
    
    anything but "strategic."
    
        The majority, agreeing in part with the district court, holds
    
    that Kyles' trial counsel made a "strategic" choice not to call
    
    Wallace to testify (or even interview him) because Wallace was a
    
    potential "loose cannon" whose testimony would have been a "double-
    
    edged sword" because Wallace "would almost certainly would have
    
    inculpated Kyles."    Majority Opinion, slip op., at pp.32-33, ___
    
    F.2d at ___.   Thus, the majority reasons, trial counsel was not
    
    deficient under Strickland.   I can only response by agreeing with
    
    the majority that I have no doubt that Wallace would have attempted
    
    to inculpate Kyles.   But that is of no moment.   The entire purpose
    
    of calling Wallace would have been to expose his leading role in
    
    the development of the prosecution's case, to impeach him and, in
    
    the process, to accuse him of framing Kyles and suggesting that
    
    Wallace had some role in the murder.      One would hardly expect
    
    Wallace not to have attempted to inculpate Kyles.      The majority
    
    simply misses the point.
    
    
    Louisiana evidence law on the issue of hostile witnesses called
    by a party. The Louisiana Supreme Court, in rejecting that
    claim, noted Regan's "clear" misunderstanding of the law. The
    Louisiana Supreme Court's conclusion applies just as forcefully
    to the ineffectiveness claim.
    
                                      56
     B. The Brady claim: Suppression and Favorableness?
    
          A Brady violation occurs where: (1) the government suppressed
    
    evidence; (2) the evidence was "favorable" to the defendant; and
    
    (3)    the   evidence   was     "material"       to   issues      at   trial.      See
    
    Pennsylvania v. Ritchie, 
    480 U.S. 39
     (1987); Bagley, supra; United
    
    States v. Agurs, 
    427 U.S. 97
     (1976); Brady, supra.                          Favorable
    
    evidence     includes   both    exculpatory       and   impeachment         material.
    
    Bagley, 473 U.S. at 676.          The Brady doctrine applies equally to
    
    situations where a specific request, general request, or no request
    
    is made by the defense for particular favorable information.                       Id.
    
    at 682; see also Kirkpatrick v. Whitley, 
    992 F.2d 491
     (5th Cir.
    
    1993). Furthermore, the Brady materiality standard applies equally
    
    to    undisclosed   evidence     relating        to   the    guilt/innocence       and
    
    punishment     stages   of    trial,   see   Brady,         
    373 U.S. 83
       (1963),
    
    including in capital cases, James v. Whitley, 
    926 F.2d 1433
    , 1437
    
    (5th Cir. 1991).
    
          After an evidentiary hearing at which the defense offered all
    
    of the above-mentioned items of evidence that were not disclosed at
    
    trial,   the   state    trial    court,     in    its   findings       of   fact   and
    
    conclusions of law, rejected Kyles' Brady claim:
    
    
           The Court finds no merit to [sic] any of the Defense
           allegations . . . regarding violations of Brady versus
           Maryland . . . . Assuming, arguendo, that certain
           background information concerning and statements of
           Joseph Wallace were withheld by the State[,] this Court
           finds that this [was] not ultimately prejudicial to the
           Defense. The Court concludes that none of the evidence
           would have ultimately assisted the Defense to any
           significant degree in this case. It is important to note
           that Joseph Wallace was never called as a witness by the
           State. As such, there never could be an attempt by the
    
                                           57
         defense to attack the character and credibility of Mr.
         Wallace. Hence, the State never sought to vouch for the
         credibility of Mr. Wallace. As such, there would be no
         basis for the attempted impeachment of Mr. Wallace by the
         Defense. It should be further noted that the Defendant
         was given ample opportunity, and successfully placed
         before the jury through credible evidence, the basic
         premise of the Defense's case, that Joseph Wallace was in
         fact the killer of Mrs. Dye and that Joseph Wallace
         "framed" the defendant for [sic] this killing.        The
         Defense even went so far as to present evidence of
         possible bias and motive[,] i.e., Wallace's desire to
         gain the affection of Curtis' Kyles' female acquaintance
         -- by having Kyles convicted of this crime and thereafter
         incarcerated. The jury was more than adequately exposed
         to the possibility that Joseph Wallace was in fact the
         killer.    They were aware that he was in fact in
         possession of the victim's car shortly after her murder.
         The jury was likewise given the opportunity to see Mr.
         Wallace in person as he was brought into open court at
         the behest of the State. He was made to literally stand
         before the jury. At the same time the jury was afforded
         the opportunity to compare his height, his size, his
         physical characteristics to those of the defendant. . .
         . This Court finds that the new evidence . . ., even if
         presented to another jury, would not in any way lead to
         a different outcome of this case.56
    
          The federal district court likewise rejected Kyles' Brady
    
    claim. The court held that none of the alleged Brady evidence even
    
    met the second prong of the Brady test -- that is, that such
    
    evidence be "favorable" to the defense on the issues of guilt or
    
    punishment.   The September 22, 1984 tape-recorded conversation
    
    between Wallace and New Orleans police, according to the district
    
    court, "does not exculpate Kyles."    The court also stated that
    
    Kyles' characterization of the contents of the tape "is not a fair
    
    
         56
           The state trial court failed to address many particulars
    of Kyles' multi-faceted Brady claim, which were raised either in
    Kyles' state habeas petition or at the extensive state post-
    conviction evidentiary hearing. See infra. The Louisiana
    Supreme Court, by a vote of five to two, affirmed the trial
    court's denial of habeas relief.
    
                                    58
    rendition of the material contained in the tape itself."57
    
    With respect to the police's computer print-out of the license
    
    numbers in Schwegmann's parking lot on the night of the murder, the
    
    district court held that because a New Orleans police officer had
    
    testified at the state court evidentiary hearing that the list was
    
    incomplete, the list "would have carried little if any exculpatory
    
    weight and bears so little on materiality that it fails to fit the
    
         57
           In reaching this conclusion, the court noted, "Kyles
    alleges that had he had the tape recording he would have learned
    that:
    
         1) Beanie knew in what area of Schwegmann's parking lot
         the murder was committed;
         2) Beanie had said that Kyles wore a `bush' hairstyle
         in contrast to testimony that the killer had `plaits';
         3) Beanie asked for $400 for the purchase price of the
         victim's car and was assured by police that he would be
         paid;
         4) Beanie suggested to police that Kyles might put
         incriminating evidence in his garbage; and
         5) Beanie feared apprehension because he had been seen
         driving the Dye automobile."
    
         I reject the district court's conclusion that Kyles'
    "characterization" of the contents of the tape "is not a fair
    rendition of the material contained in the tape itself." I have
    repeatedly listened to the tape, have compared it to the
    transcript of the recording offered by Kyles' counsel, and agree
    with Kyles' characterization regarding each of the above five
    points. The characterization of whether certain undisclosed
    evidence is "favorable" to the defense (a prerequisite to a
    finding of "materiality" under Brady) is a mixed question of fact
    and law, which is reviewed de novo on appeal, rather than a pure
    factual finding. See United States v. Rogers, 
    960 F.2d 1501
    ,
    1510 (10th Cir. 1992) (citing cases); United States v. Phillip,
    
    948 F.2d 241
    , 250 (6th Cir. 1991); United States v. Rivalta, 
    925 F.2d 596
    , 598 (2d Cir. 1991). Thus, the district court's legal
    conclusion is owed no deference and is reviewed de novo on
    appeal. Even assuming that the district court's conclusion
    regarding Kyles' "characterization" of the contents of the tape
    recording were a "pure" finding of fact, I would reject that
    finding as clearly erroneous. Finally, I observe that the
    majority does not appear to dispute Kyles' characterization of
    the contents of the tape recording.
    
                                    59
    Brady mold."     With respect to the police memoranda regarding the
    
    garbage collection, the court stated that even if Beanie were the
    
    source of the tip about the garbage, "the bags that were picked up
    
    were identical, which renders improbable, if not impossible, the
    
    defense's    argument     that     Beanie   planted    a    bag   of   garbage."
    
    Regarding Smallwood's inconsistent witness statement, the district
    
    court     conceded     that   Smallwood's      trial       testimony   appeared
    
    "embellished," but summarily held that there was no "prejudicial
    
    error."     After stating that "[a] complete reading of the record
    
    convinces this court of Kyles' guilt and that he received a fair
    
    trial," the district court rejected Kyles' Brady arguments.
    
         On appeal, Kyles once again advances his Brady claim.                Kyles
    
    points     to:   i)     Beanie's     various   undisclosed        contradictory
    
    statements; ii) Isaac Smallwood's contemporaneous witness statement
    
    that conflicted with his trial testimony; iii) the computer print-
    
    out of license plate numbers; and iv) the police internal memoranda
    
    regarding the seizure of garbage.
    
         As an initial matter, I address the contention that has been
    
    made by the state trial court judge and the State pertaining to the
    
    fact that the trial prosecutors -- as opposed to the New Orleans
    
    police -- may not have been aware of some of this evidence at the
    
    time of trial.        If this were indeed true,58 it would nevertheless
    
         58
           I find the State's claim that the various items in the
    police file were not even made available to the prosecution until
    long after trial to be highly implausible; indeed, the State's
    claim here suggests that the State is not being candid with the
    court. The State has claimed that the various statements of the
    eyewitnesses, the three statements of Beanie Wallace, and the
    police memoranda were not available -- to the prosecution or
    
                                           60
    be irrelevant.   The Brady doctrine is not limited to prosecutors;
    
    rather, it includes all members of the "prosecution team," which
    
    includes all law enforcement officers who have worked on the case
    
    and thereby contributed to the prosecutorial effort. See Schneider
    
    v. Estelle, 
    552 F.2d 593
    , 595 (5th Cir. 1977) ("The petitioner . .
    
    . allege[s] that Nicholson was a state law enforcement officer.   As
    
    such, he was a member of the prosecution team."); see also United
    
    States v. Buchanan, 
    891 F.2d 1436
    , 1442-43 (10th Cir. 1989) (citing
    
    cases); United States v. Endicott, 
    869 F.2d 452
    , 455 (9th Cir.
    
    1989) (citing cases); United States ex rel. Smith v. Fairman, 
    769 F.2d 386
    , 391 (7th Cir. 1985).   In a similar vein, the good faith
    
    or bad faith of the prosecution has no bearing on the due process
    
    required by Brady.   Brady, 373 U.S. at 87.   Accordingly, "whether
    
    the nondisclosure was a result of negligence or design, it is the
    
    responsibility of the prosecutor."    Giglio v. United States, 
    405 U.S. 150
    , 154 (1972).
    
    
    defense -- until long after trial because of "slow typing" by
    police typists. See State's Brief, at p. 29. The claim was
    repeated at oral argument. However, the very documents that
    supposedly were typed long after the fact entirely belie the
    State's claim. All of the contemporaneous eyewitness statements,
    which were typed, were signed and dated by the various
    eyewitnesses in the immediate wake of the murder. Likewise,
    Beanie Wallace's second statement, which was typed, was signed
    and dated by Wallace on September 23, 1984 -- three days after
    the murder. I simply cannot accept the proposition these various
    typed documents were back-dated and signed after trial.
    Furthermore, Beanie Wallace's third statement, which was
    memorialized in Assistant DA Strider's notes, obviously was
    available before trial. And, finally, the original tape-recorded
    statement, which was never reduced to a hard copy until it was
    disclosed to the defense during the post-conviction proceedings,
    clearly was available, as it was on tape. The State's claim that
    the tape was never listened to by the prosecution, while
    irrelevant, is likewise implausible.
    
                                     61
         That said, I agree with Kyles that all of these items of
    
    undisclosed evidence, particularly when considered cumulatively,
    
    would have been "favorable" to the defense at trial within the
    
    meaning of Brady.     The state trial court, whose opinion was
    
    affirmed by the Louisiana Supreme Court, and the federal district
    
    court concluded that the evidence was not favorable because of the
    
    supposedly overwhelming evidence of Kyles' guilt.       I disagree.
    
    Much of the Brady evidence in this case substantially detracts from
    
    the State's evidence and theories at trial.         The undisclosed
    
    evidence, as Kyles correctly argues, "fits hand in glove" with his
    
    theory of the defense advanced at trial.     Moreover, two of the
    
    undisclosed items -- contemporaneous witness statements by Isaac
    
    Smallwood and Henry Williams -- go to the reliability of the
    
    critical eyewitness testimony at trial.       Rather than further
    
    addressing here how each item of undisclosed evidence would have
    
    been "favorable," I necessarily will address that question in Part
    
    II.C., infra, in discussing the larger issue of materiality.59
    
    
    
    C. Brady "Materiality" and Strickland "Prejudice"
    
    i) Why the two claims must be evaluated in conjunction
    
        Having determined both that Kyles' trial counsel was deficient
    
    by failing to call Beanie Wallace as a defense witness and that a
    
         59
           The majority opinion, unlike the district court and
    states courts, agrees that at least Beanie Wallace's tip to
    police about the garbage, discussed infra, was favorable.
    However, the majority holds that the totality of the Brady
    evidence, including Wallace's garbage tip, was not "material."
    As I discuss infra, I disagree with the majority on the question
    of Brady materiality.
    
                                    62
    considerable amount of evidence was both suppressed by the State
    
    and favorable to the defense, I next jointly determine: i) whether
    
    the evidence was "material" under Bagley; and ii) whether trial
    
    counsel's     deficiency    "prejudiced"    Kyles   under   Strickland.        I
    
    believe that the only appropriate way to analyze Kyles' case is to
    
    consider his ineffectiveness and Brady claims in conjunction.
    
    After     all,   the   "materiality"   prong   of   his   Brady   claim   in   a
    
    significant way directly relates to the "prejudice" prong of his
    
    ineffectiveness claim, and vice versa.              Furthermore, as noted
    
    supra, the inquiry for both claims is identical: assuming, counter-
    
    factually, that Wallace had in fact been called as a defense
    
    witness and that trial counsel had been privy to all of the
    
    aforementioned Brady evidence, it must be asked whether there is a
    
    "reasonable probability" that the result of the guilt/innocence
    
    phase or punishment phase would have been different. A "reasonable
    
    probability" is one that "undermines confidence in the outcome."
    
    Bagley, 473 U.S. at 682; Strickland, 466 U.S. at 694.60                    The
    
    majority believes that there is no need even to engage in this
    
    joint Bagley/Strickland analysis because the majority holds that
    
    Kyles' trial counsel was not deficient for failing to call Wallace
    
    
    
         60
           I note here that the majority opinion repeatedly speaks
    of applying the "harmless error" rule to Kyles' Brady claims.
    The majority seems unaware that Brady's progeny, in particular
    Bagley, have their own built-in test of "materiality" to
    determine whether any Brady violation was "harmful" to the
    defendant -- namely, whether the undisclosed evidence undermines
    confidence in the verdict. I thus see no need to respond to the
    majority's rather curious claim that any Brady violation was
    harmless under Brecht v. Abrahamson, 
    113 S. Ct. 1710
     (1993).
    
                                           63
    to the stand.        See Majority Opinion, slip op., at p.22 n.10, ___
    
    F.2d at ___ n.10.
    
    ii) Why my confidence in Kyles' guilty verdict and death sentence
    is undermined
    
        Under Strickland and Bagley, this court must determine whether
    
    there     is   a   "reasonable          probability"    that,    but   for    the    two
    
    constitutional           errors    working     in    conjunction,      Kyles'      jury,
    
    considering        all     of     the   relevant     evidence,    would      not    have
    
    unanimously found either that there was sufficient evidence to
    
    prove beyond a reasonable doubt that Kyles was guilty or that Kyles
    
    should receive a death sentence. 61                 The heart of the inquiry here
    
    is whether the constitutional infirmities rendered the proceeding
    
         61
            Under Louisiana law, a single holdout juror during the
    punishment phase would have automatically resulted in a life
    sentence for Kyles. See State v. Loyd, 
    459 So. 2d 498
    , 503 (La.
    1984) (as long as a single juror held out and voted for a life
    sentence, automatic life sentence under Louisiana law); see also
    LA. CODE CRIM. PRO. 905.8. Although residual doubt is not a
    species of constitutionally relevant mitigating evidence, see
    Franklin v. Lynaugh, 
    487 U.S. 164
     (1988), there is no question
    that residual doubt plays a significant role in leading a jury to
    impose a life sentence, see Lockhart v. McCree, 
    476 U.S. 162
    , 181
    (1986) ("[A]s several courts have observed, jurors who decide
    both guilt and penalty are likely to form residual doubts or
    `whimsical doubts' . . . about the evidence so as to decide
    against the death penalty. Such residual doubt has been
    recognized as an extremely effective argument against the death
    penalty.") (citations and internal quotations omitted) (emphasis
    added). Kyles' trial counsel accordingly argued that Kyles'
    sentencing jury should consider their residual doubt in assessing
    punishment. In this regard, it is noteworthy that Kyles did not
    have any other aggravating factors supporting the imposition of a
    death verdict besides the fact that the murder for which he was
    convicted was committed in the course of a robbery. And,
    finally, I note that Kyles lacked a significant prior criminal
    history, which is important mitigating evidence. See Kyles v.
    State, 513 So.2d at 276. The majority incorrectly states that
    Kyles had no mitigating evidence "other than his close
    relationships with his family." Majority Opinion, slip op., at
    p. 13, ___ F.2d at ___.
    
                                                 64
    unreliable.    See Lockhart v. Fretwell, 
    113 S. Ct. 838
    , 842-43
    
    (1993).62   Looking at the totality of evidence in this case -- both
    
    that admitted at trial and that which should have been introduced
    
    -- my confidence in the jury's guilty verdict and death sentence is
    
    undermined.   Bagley, 473 U.S. at 682; Strickland, 466 U.S. at 694.
    
    
    
         In this section, I focus on five main factors that undermine
    
    my confidence in Kyles' guilty verdict and death sentence.       They
    
    may be summarized as follows:
    
         (i) Kyles' first jury, hearing evidence essentially
         identical to that offered at the second trial, was
         deadlocked on the question of guilt;
    
         (ii) Beanie Wallace's various statements not only reveal
         numerous material inconsistencies that suggest that the
         State's informant was not credible, but also are directly
         exculpatory in numerous ways;
    
         (iii) the undisclosed contemporaneous witness statements
         not only undermine the eyewitness testimony at trial, but
         also contain information that suggests that Kyles was not
         the killer;
    
         (iv) the remainder of the Brady evidence is significant; and
    
         (v) the remainder of the State's case not only fails to
         support the prosecution's theory, but in fact bolsters
         the defense's theory.
    
          My focus on these factors, particularly (ii)-(iv), chiefly
    
    concerns how a reasonably effective trial counsel would have used
    
    the Brady evidence had it been properly disclosed by the State.   My
    
    analysis assumes that trial counsel would have utilized such
    
    
         62
           Although Lockhart was an ineffectiveness case, its
    emphasis on reliability is equally applicable to Brady claims in
    view of Bagley's wholesale adoption of Strickland's "prejudice"
    requirement.
    
                                     65
    evidence to support the theory of the defense at Kyles' actual
    
    trial: namely, that Curtis Lee Kyles had nothing to do with Mrs.
    
    Dye's murder and that the eyewitnesses were mistaken or being
    
    untruthful; that Beanie Wallace "framed" Kyles not only by falsely
    
    informing police that Kyles had sold Mrs. Dye's car to Beanie and
    
    that Kyles had retrieved his own car from the Schwegmann Bros.'s
    
    parking lot after the murder, but also by planting various pieces
    
    of   incriminating   evidence   at   Pinkie   Burnes'   apartment;   and,
    
    finally, that Wallace himself possibly had some role in the Dye
    
    murder.
    
         As an initial matter, unlike the majority I assume here that,
    
    had Wallace been interviewed by Kyles' trial counsel, counsel would
    
    have called Wallace as a defense witness at trial and attempted to
    
    have Wallace explain his various statements given to the State
    
    before trial. This scenario assumes that Wallace would have agreed
    
    to testify and would not have invoked his Fifth Amendment right to
    
    avoid self-incrimination.       The State has never suggested that
    
    Wallace would have done so, perhaps because there is a serious
    
    question about whether Wallace could have effectively made a
    
    "blanket" invocation of the Fifth.        See State v. Smith, 
    573 So. 2d 1233
    , 1236 (La. App. 1991); State v. Boyd, 
    548 So. 2d 1265
    , 1268-69
    
    (La. App. 1989).63   Assuming that Wallace had invoked the Fifth in
    
          63
           Although obviously Wallace could have invoked the Fifth
    regarding certain questions (e.g., how Wallace knew the location
    of the murder in the Schwegmann Bros.'s parking lot), other lines
    of defense questioning would have been proper and not potentially
    incriminating (e.g., asking Wallace to explain the various
    inconsistencies in his statements). I also observe that the
    trial judge would have had discretion to permit the defense to
    
                                         66
    whole or in part, Wallace's invocation would have presented Kyles
    
    with valuable ammunition supporting the theory of the defense.
    
    Why, Kyles' trial counsel could have argued to the jury, did the
    
    State's informant invoke the Fifth in a case in which he was
    
    supposedly only a "good citizen"?
    
          Furthermore, assuming that Wallace had invoked the Fifth in
    
    whole or in part, Kyles' trial counsel would nevertheless have been
    
    able to utilize the various Brady evidence regarding Wallace.64
    
    Much, if not all, of Wallace's various inconsistent statements
    
    would have likely been admissible in other ways.             For instance, by
    
    calling the various New Orleans police who worked with Wallace (or
    
    possibly   even     prosecutor   Cliff   Strider)     as    hostile    defense
    
    witnesses and questioning them about their meetings with Wallace
    
    and   about   the     information   available    to        them   during   the
    
    investigation -- rather than whether such information was in fact
    
    true -- a great deal of Wallace's statements could have been
    
    introduced as non-hearsay under Louisiana evidence law in operation
    
    at the time of Kyles' trial.             Finally, simply by proffering
    
    Wallace's various inconsistencies -- rather than arguing that any
    
    of them were in fact true -- the defense could have offered the
    
    statements as non-hearsay under Louisiana evidence law.               See State
    
    v. Hennigan, 
    404 So. 2d 222
    , 228-29 (La. 1981) ("[E]vidence is not
    
    
    ask Wallace potentially incriminating questions in front of the
    jury. See State v. Edwards, 
    419 So. 2d 881
     (La. 1982).
          64
           The remainder of the Brady evidence -- such as the police
    memoranda -- would have been admissible and highly relevant
    standing own its own, irrespective of whether Wallace had been
    called as a witness.
    
                                        67
    hearsay when offered to prove only that it occurred . . . or that
    
    a conversation took place.").65
    
               I also observe that all of the Brady evidence would have
    
    directly supported the actual evidence and testimony presented by
    
    the defense at Kyles' trial -- a theory of the defense that
    
    provoked a hung jury on its own without the Brady evidence.                     As I
    
    discuss      below,     information       gleaned    from   Wallace's      various
    
    statements -- such as his admissions that he indeed possessed Mrs.
    
    Dye's car shortly after the murder, that he changed its license
    
    plates, and that he was actually present at the "Sunday dinner" at
    
    Pinkie Burnes' apartment on the Sunday after the murder -- would
    
    have bolstered the credibility of key defense witnesses.
    
    
    
    a) The deadlocked jury at Kyles' first trial
    
           The majority, echoing the district court, states that Kyles
    
    "faces overwhelming evidence of guilt," a conclusion which dictates
    
    the    majority       and     district     court's      rejection    of     Kyles'
    
    ineffectiveness and Brady claims.               That is, the majority reasons
    
    that Kyles could not have been prejudiced because the result of the
    
    proceeding      would       have   been   the    same   whether     or    not   the
    
    constitutional errors occurred. If indeed that were true, then why
    
    did Kyles' first jury trial, which occurred immediately before the
    
          65
           A competent trial counsel could have laid the proper
    evidentiary foundation for introducing Wallace's various
    statements by first questioning police officers such as Detective
    Dillman about the New Orleans Police Department's basis for
    suspecting that Kyles was the murderer and why the police
    believed that incriminating evidence would be inside Pinkie
    Burnes' apartment and in her garbage.
    
                                              68
    second trial and which involved essentially the same evidence and
    
    prosecution and defense theories, end in a mistrial because of a
    
    deadlock on the question of guilt?         The theory of the defense --
    
    even without all of the critical evidence withheld and without
    
    Wallace's testimony -- was obviously not as weak as has been
    
    claimed.    See Stano v. Dugger, 
    901 F.2d 898
    , 903 (11th Cir. 1990)
    
    (en banc) (in finding a Brady violation, the court pointed out that
    
    a deadlocked jury had caused mistrial at defendant's prior trial).
    
    
    
        As the Supreme Court has repeatedly observed, appellate judges
    
    are presented with only a "cold record" from which to evaluate the
    
    proceedings that transpired below. See, e.g., Patton v. Yount, 
    467 U.S. 1025
    , 1039-40 (1984).          In most cases, we cannot accurately
    
    assess    the   credibility   of    witnesses   and   the   plausibility   of
    
    counsel's arguments based on the evidence merely from reading the
    
    statement of the facts.            We are not aware of such important
    
    subtleties as a witnesses' demeanor or trial counsel's apparent
    
    sincerity (or lack thereof).         In this regard, the fact that one or
    
    more jurors at Kyles' first trial were not convinced beyond a
    
    reasonable doubt of his guilt is significant in assessing the force
    
    of Kyles' case or, alternatively, the weaknesses in the State's
    
    case.
    
    
    
    b) "Beanie" Wallace's various undisclosed statements
    
             Of all of the Brady evidence, I consider Beanie Wallace's
    
    undisclosed statements to be the most significant.               First, the
    
    
                                          69
    statements reveal that the State's informant, who was crucial to
    
    the State's ability to finger Kyles in the first place, was an
    
    incessant liar and schemer who appeared anxious to see Curtis Lee
    
    Kyles      arrested   for   the   murder   of   Delores    Dye.     Second,   the
    
    statements contain significant exculpatory evidence.                I first note
    
    the significant contradictions in his various statements.
    
    1) Contradictions
    
          Wallace's September 22, 1984 (Saturday) oral statement66 to New
    
    Orleans police consisted of the following chronology: on the prior
    
    Friday, at approximately 6:00 p.m., Kyles sold Mrs. Dye's red Ford
    
    to Wallace; at 9:00 p.m., Wallace, Kyles' brother-in-law, and Kyles
    
    drove to Schwegmann Bros.'s parking lot to retrieve Kyles' car;
    
    while at the supermarket, Kyles also retrieved a large brown
    
    woman's purse from nearby bushes.               Wallace's September 23, 1984
    
    (Sunday) written statement to police consisted of the following
    
    chronology: on the prior Friday, at approximately 6:00 p.m., Kyles
    
    sold the red Ford to Wallace at some location on Mazant Street in
    
    New   Orleans;    after     the   purchase,     Wallace,   Kyles,   and   Kyles'
    
    brother-in-law unloaded bags of Schwegmann Bros.'s groceries and a
    
    brown purse from the red Ford's trunk and back seat and placed them
    
    in Kyles' car; the three then drove to Pinkie Burnes' apartment,
    
    where the groceries were unloaded; at approximately 9:00 p.m.,
    
    Wallace, Kyles, and Kyles' brother-in-law drove to Schwegmann Bros.
    
          66
           It is noteworthy that in making this first statement
    Wallace assumed the alias "Joseph Banks" and was not forthcoming
    about his criminal record, namely a conviction of being an
    accessory to a murder, and instead claimed that he had been
    convicted only for "fighting."
    
                                           70
    to retrieve Kyles' car; at Schwegmann Bros., Kyles also retrieved
    
    a "big brown pocketbook he had by the building."
    
              In Wallace's final oral statement, memorialized in the
    
    handwritten notes of the chief trial prosecutor, Cliff Strider,
    
    Wallace recounted the following chronology: on Thursday, September
    
    20, 1984, in the early evening, sometime after 5:00 p.m., Wallace,
    
    Kyles, Kyles' brother-in-law, and Kevin Black drove from Pinkie
    
    Burnes' apartment in the brother-in-law's car to Schwegmann Bros.,
    
    where they retrieved Kyles' car; the four thereafter returned to
    
    Pinkie Burnes' apartment; at approximately 7:30-7:45 p.m., the four
    
    then drove to Black's residence, where they retrieved bags of
    
    Schwegmann Bros.'s groceries and a brown purse; the four then
    
    returned to Pinkie Burnes' apartment, where the Schwegmann Bros.'s
    
    bagged groceries and the brown purse were taken into the apartment;
    
    the next day, Friday, in the early afternoon, Kyles drove Wallace
    
    to Black's house where Wallace purchased Mrs. Dye's stolen red
    
    Ford; Wallace drove the red Ford around New Orleans with a friend,
    
    Ronald    Gorman,67   until   early    Saturday   morning;   on   Saturday
    
    afternoon, Wallace changed the license plates on the car and then
    
         67
           Gorman was a defense witness at trial, who testified that
    Wallace, wearing his hair in braids, possessed the red Ford on
    the day of the murder and attempted to sell it to Gorman.
         I further note that included in the habeas record is an
    undisclosed transcript of a conversation between New Orleans
    Police Detective Pascal Saladino, who worked on the Dye case, and
    Gorman. The transcript is dated November 28, 1984, which was in
    the interim between Kyles' first and second trial. Towards the
    end of the statement, Gorman told Saladino that Beanie Wallace
    had threatened to kill Gorman if he testified on behalf of Kyles
    (and, thus, against Wallace) at the second trial. The transcript
    was first introduced into the record at the state habeas
    evidentiary hearing.
    
                                          71
    discovered that the car had been stolen from Mrs. Dye; thereafter,
    
    Wallace contacted police on Saturday night.
    
         Unlike the majority, I believe that it is obvious that these
    
    three statements contain significant inconsistencies that would
    
    have been extremely valuable to the defense.    In particular, the
    
    various inconsistencies would have permitted jurors to see that
    
    Wallace was an opportunist and liar.   The changes in the dates and
    
    times of when he was sold the car, when the groceries were
    
    retrieved, and when Kyles' car was allegedly retrieved from the
    
    Schwegmann Bros.' parking lot -- statements given within a day or
    
    two after the alleged events -- would have painted a compelling
    
    picture of someone who was lying to police or at least one who knew
    
    much more than he was telling the police.   A jury could reasonably
    
    conclude that Wallace was spinning an elaborate web of lies, thus
    
    discrediting a significant portion of the prosecution's theory of
    
    the case.68
    
        The majority greatly discounts the significance of evidence of
    
    Wallace's scheming to have Kyles arrested for Mrs. Dye's murder.
    
    The majority argues that because the theory of the defense at trial
    
         68
           Especially noteworthy is Wallace's claim in his September
    23, 1984 statement to police that, at approximately 6:00 p.m. on
    Friday, September 21, Kyles, Kyles' brother-in-law, and Wallace
    moved the groceries from the stolen red Ford to Kyles' own car.
    Then, Wallace claimed, three hours later, Kyles requested that
    Wallace and Kyles' brother-in-law drive Kyles to Schwegmann Bros.
    in order to retrieve Kyles' own car. This asks one to believe
    that on the day after the murder Kyles returned to the murder
    scene and left his car that had not been parked there previously.
    Furthermore, these claims take on particular relevance in view of
    the State's attempt to prove at trial -- using a blurry, blown-up
    police photograph -- that Kyles' car was parked at the murder
    scene on Thursday afternoon immediately following the murder.
    
                                    72
    was that Beanie framed Kyles, the "new" evidence would have only
    
    been "cumulative."    See Majority Opinion, slip op., pp.20-24,
    
    ___F.2d at ___-___. The majority's reasoning here assumes that the
    
    jury would have had no more reason to believe the defense's theory
    
    if the various undisclosed evidence had been introduced.    As the
    
    majority correctly observes, the first line of defense at both of
    
    Kyles' trials was that Beanie Wallace framed Kyles and possibly
    
    that Wallace was in fact somehow involved in the murder.      That
    
    defense was supported by relatively weak evidence at trial --
    
    testimony of Kyles' friends and family.   The undisclosed evidence,
    
    in particular Wallace's own words, would have greatly bolstered the
    
    theory of the defense.   The Brady evidence in this case would have
    
    afforded the defense the opportunity to argue forcefully that
    
    Wallace framed Kyles and that perhaps Wallace himself had some role
    
    in the murder.69
    
    
    
    2) Potentially exculpatory material
    
        Wallace's statements are also significant in that they contain
    
    direct or indirect exculpatory material.       There are numerous
    
    statements made in the September 21, 1984 (Saturday) tape-recorded
    
         69
           I note that at trial there was no direct evidence of just
    how Kyles became the New Orleans Police Department's leading
    suspect in the Dye murder. The State never called Wallace as a
    witness and no policemen were called to testify about Wallace's
    involvement in the investigation. Rather, it was apparently
    assumed in the respective theories of the prosecution and defense
    during the trial that Wallace had some role in the murder
    investigation. Thus, the jury likely was not aware of the
    significance of Wallace's role and could only infer that Wallace
    must have had some role in the police effort based on the defense
    claims that Wallace was in possession of Mrs. Dye's car.
    
                                    73
    conversation that are notable in this regard. First, Wallace twice
    
    made a significant admission: he changed the license plates on the
    
    stolen red Ford.   As Kyles argues, this action casts into doubt the
    
    State's claim that Wallace was simply an unwitting bona fide
    
    purchaser of a stolen automobile.70 It also would have corroborated
    
    trial testimony of Johnny Burnes, Wallace's self-styled "partner,"
    
    who testified (under attack from the prosecution) that he witnessed
    
    Wallace changing the plates on a red car on the day of the murder.71
    
         70
           I observe that at trial Detective John Dillman, who
    headed the New Orleans Police Department's investigation into
    Mrs. Dyes' murder, was squarely asked by Kyles' trial counsel,
    "[a]re you aware that Beanie changed the license plate on this
    red vehicle belonging to Mrs. Dye?" Detective Dillman responded
    under oath that, "I have no knowledge of that, sir."
         71
           At trial, Johnny Burnes obviously attempted to boost his
    credibility by stating that he and Wallace were "best friends" at
    the time of Kyles' arrest; this claim would have been supported
    by Wallace's repeated references to Burnes as his "partner."
         The majority states that the state trial court found that
    Johnny Burnes was not a credible witness. The majority holds
    that this finding is entitled to deference under 28 U.S.C. §
    2254(d). See Majority Opinion, slip op., at p.24, ___ F.2d at
    ___. The majority errs here, at least if it is holding that we
    are bound by a state court fact-finding that Johnny Burnes was
    not credible as-a-matter-of-law at trial, which the majority
    appears to hold. The state trial court found that Burnes was not
    credible at a post-conviction hearing where Burnes testified, not
    in Burnes' testimony at trial. I further note that the majority's
    apparent reliance on § 2254(d) regarding Burnes' credibility at
    trial is inappropriate here because Johnny Burnes' credibility at
    trial could have been significantly boosted by this evidence that
    the State failed to disclose. The finding by the state trial
    court thus cannot bind us regarding Burnes' trial testimony.
    Even if the majority's characterization of the state court's
    finding was correct -- which it is not -- a state habeas court's
    view of the weight of evidence or testimony actually offered at a
    jury trial could be "found" by a state trial judge to be, in
    effect, incredible as-a-matter-of-law. Such a credibility
    finding -- a factual finding -- wrongly enters into the province
    of the jury; that is, the credibility of a witness' trial
    testimony would be a quintessential question for a jury, not a
    trial judge.
    
                                     74
    Burnes also provided other testimony important to the theory of the
    
    defense,   namely   that   on   Sunday,   September   23,   1984,   Burnes
    
    witnessed Wallace stooping down at the stove in Pinkie Burnes'
    
    apartment where police ultimately recovered the murder weapon.
    
        Second, Wallace's "tips" to police that they "would be smart"
    
    to look in the garbage outside Pinkie Burnes' residence and that
    
    they could "set up" Kyles and find the murder weapon inside the
    
    apartment suggest that Wallace was in control of critical evidence.
    
    A jury could rationally infer based on Wallace's apparent control
    
    over the evidence that he was somehow involved in the murder.72
    
    Also significant in this regard are Wallace's various confusing
    
    claims about how Mrs. Dye's purse was retrieved at the scene of the
    
    murder.    In particular, Wallace made the odd claim that Kyles
    
    retrieved Mrs. Dye's purse from bushes next to the Schwegmann
    
    Bros.' parking lot.    This simply makes no sense.      Eyewitnesses to
    
    the murder testified that Mrs. Dye's brown purse was placed in the
    
    trunk before she was confronted by her attacker.       No one testified
    
    that the assailant took her purse and placed it in nearby bushes
    
         72
           In claiming that the undisclosed tape recording and
    various internal police memoranda regarding the garbage were not
    "material" under Bagley, the majority argues that even without
    the undisclosed evidence regarding the garbage tip, "Kyles made a
    credible case that Beanie could have planted this evidence. It
    was undisputed at trial that anyone could have had access to the
    garbage bags sitting on the curb and that Beanie was attempting
    to incriminate Kyles." Majority Opinion, slip op. at p.23, ___
    F.2d at ___. The majority makes the erroneous assumption that
    Wallace's mere opportunity to plant the incriminating items and
    concrete evidence that Wallace actually suggested to police that
    they should look into the garbage would have been equivalent in
    jurors' eyes. I simply cannot believe that a jury would not have
    given tremendous weight to Wallace's tip to police as highly
    probative evidence that he framed Kyles.
    
                                        75
    before driving her car away.       Even assuming that the purse did not
    
    somehow make its way into Mrs. Dye's car, which her assailant
    
    immediately drove away, this hardly explains how the purse could
    
    have ended up in nearby bushes.           Wallace's bizarre claims about
    
    retrieving the purse from the bushes suggest that he was lying in
    
    order to dispel suspicion from himself about having possession of
    
    the   purse.    A   jury   could    reasonably    infer   that   Wallace's
    
    unsolicited communication to the police, when combined with his
    
    statements about such key evidence, indicated that he indeed
    
    "framed" Curtis Lee Kyles.73
    
          Wallace made another incriminating admission during the first
    
    recorded conversation: he evinced an apparent awareness of the
    
    specific part of the parking lot where Mrs. Dye was killed.
    
    Although a jury possibly could rationally conclude, as the State
    
    and the majority contend, that Wallace gleaned this particular
    
    information from the media, a jury also certainly could reasonably
    
    conclude otherwise.    This is potentially critical information to
    
    
          73
           I note that Detective Dillman explicitly testified at the
    state habeas evidentiary hearing that he was not given the tip
    that evidence might be found in the garbage outside Pinky Burnes'
    apartment from Wallace. Similarly, one of Sergeant Eaton's
    underlings, Officer Pascal Saladino, who actually seized the
    garbage, testified at trial that the police did not act on a tip
    in seizing the garbage. The State argues in its appellate brief
    that "[i]t is not clear that Beanie made this suggestion, but
    assuming he did, so what? In the context of the facts of this
    case, it is a suggestion that would not be unexpected and a
    conclusion that the police would be expected to reach." I
    observe that, at the state court post-conviction evidentiary
    hearing, Kyles' chief trial prosecutor testified that he did not
    remember a single instance before Mrs. Dye's murder where New
    Orleans police had searched and seized garbage on the street in
    front of a residence.
    
                                         76
    the theory of the defense in view of the fact that Wallace
    
    consistently denied that Kyles, Kyles' brother-in-law, or any of
    
    Kyles' other compatriots told Wallace that Kyles had murdered Mrs.
    
    Dye.
    
           Another bit of potentially valuable information that Wallace
    
    disclosed in the September 22 statement that bolsters the theory of
    
    the defense concerns his repeated statements that Kyles not only
    
    generally wore a "bush" hairstyle, but also wore one on the day
    
    that Wallace purchased the car.        Although Wallace at one point
    
    claimed that he bought the car on Friday, in at least one statement
    
    he also claimed that he was in the presence of Kyles on Thursday,
    
    within three hours of the murder.      When combined with the numerous
    
    eyewitness statements describing the murderer as wearing his hair
    
    in braids or plaited, a rational jury could find this statement
    
    significant.
    
           Finally, Wallace's admission to Assistant DA Cliff Strider
    
    that Wallace was in fact present during the "Sunday dinner" at
    
    Pinkie Burnes' apartment is evidence from which a jury could infer
    
    that Wallace had an opportunity to plant the various incriminating
    
    items.      Furthermore,   in   this    regard,   Wallace's   statement
    
    specifically comports with Johnny Burnes' trial testimony that he
    
    witnessed Wallace reaching down and placing something behind the
    
    stove that Sunday night.
    
    
    
    c) The undisclosed eyewitness statements
    
    
    
    
                                      77
         As the district court correctly observed "the essence of the
    
    [S]tate's case . . . was founded on the positive identification by
    
    four eye-witnesses who saw Curtis Lee Kyles at varying stages of
    
    the incident calmly placing a gun to the head of an unarmed woman,
    
    and blowing her brains out (for absolutely no other reason than to
    
    rob her), and then driving away in her car."      Despite specific
    
    requests from the defense during pre-trial discovery, the State did
    
    not disclose the contemporaneous witness statements taken by New
    
    Orleans police from three of those four witnesses who testified at
    
    trial.74
    
         74
            Those four witnesses were Robert Territo, Isaac
    Smallwood, Henry Williams, and Darlene Cahill. Contemporaneous
    statements were only taken from Territo, Smallwood, and Williams.
    Three other eyewitnesses -- Lionel Plick, Edward Williams, and
    Willie Jones, none of whom ever positively identified Kyles --
    did not testify at trial. According to the testimony of Officer
    John Dillman, three of the eyewitnesses, Smallwood, Henry
    Williams, and Territo, were able to positively identify Kyles
    from a pre-trial photographic line-up conducted a few days after
    the murder. That line-up consisted of pictures -- both a frontal
    view and profile -- of six young black males from the waist up.
    Kyles was #6 in the spread. Wallace was not a part of the
    spread. I observe that, in pictures with equivalent hair styles,
    Wallace and Kyles' facial features resemble each other. See also
    Kyles v. State, 513 So.2d at 268 ("There was . . . testimony that
    Wallace and [Kyles] resembled each other."). Indeed, as Kyles
    points out, one of the eyewitnesses who identified Kyles out of
    the pre-trial photo-line up, Isaac Smallwood, positively
    identified Wallace rather than Kyles when presented with a post-
    trial photo line-up in which Kyles and Wallace had identical hair
    styles.
         I also observe that the police officer who conducted the
    photo line-up and who testified about it at trial, John Dillman,
    made numerous statements under oath in the state court
    proceedings that cast serious doubt on his credibility. See
    supra. Such statements included testimony about the
    contemporaneous witness statements given by the eyewitnesses who
    testified at trial. As discussed supra, those witness statements
    were not turned over to the defense at trial, despite a specific
    request, because the State claimed that they contained nothing
    exculpatory. Dillman nonetheless testified about them at trial,
    
                                    78
            Kyles points to Isaac Smallwood's statement, in which
    
    Smallwood described what he saw as follows: "I was standing near
    
    the old gas pumps, with my back facing the Chef Hwy. and facing old
    
    Gentilly Rd.   I heard a loud pop. When I looked around I saw a lady
    
    laying on the ground, and there was a red car coming toward me."
    
    (emphasis   added).   According   to   this   statement,   Smallwood's
    
    identification of the assailant came when he drove the car, which
    
    Smallwood described as a "red thunder bird," past him.         When a
    
    police investigator specifically asked him, "[w]hen you first heard
    
    the shot, and looked at the lady on the ground, was the black male
    
    standing near her?," Smallwood responded "[n]o. He was already in
    
    the car and coming toward me." (emphasis added).
    
    
    
    
    without producing copies of them.
         Kyles' trial counsel, on cross-examination of Dillman, asked
    him "[d]id these physical descriptions differ in any single
    point?" Dillman responded that "[p]ossibly the only discrepancy
    would have been in height. . . . The discrepancy would have been
    anywhere from a description of five feet eight to a description
    of possibly six feet tall, which is a difference of three or four
    inches." (emphasis added). This response, of course, was simply
    untrue. Henry Williams' witness statement estimated that the
    killer was as short as 5'4", which would make the discrepancy
    eight inches. Similarly, when asked about age discrepancies,
    Dillman stated that the eyewitnesses all described the killer as
    being in his twenties when in fact three different eyewitness
    described the killer as ranging from seventeen to nineteen years
    old. As noted, Kyles was twenty-five at the time of the crime,
    and the photographs of Kyles in the record depict a man in his
    mid-twenties. Dillman also claimed that there was "no
    discrepancy in facial hair or features at all," when in fact
    Isaac Smallwood described the killer as having a moustache, a
    feature described by none of the other eyewitnesses, many of whom
    claimed to have seen the killer up-close. (In photos of Kyles
    both before and after the killing, he possesses a light
    moustache.) Finally, Dillman neglected to mention that Smallwood
    described the killer as having shoulder-length braided hair,
    while Henry Williams described the killer as having "short" hair.
    
                                      79
              Both at the pretrial suppression hearing and at trial,
    
    however,    Smallwood   gave   a   significantly   different   eyewitness
    
    account.    He testified that he actually saw the black assailant,
    
    whom he positively identified as Kyles, struggling with Mrs. Dye.
    
    He further testified that he specifically saw Kyles raise the
    
    pistol -- which Smallwood described as a       "small black . .   .32" --
    
    and shoot Mrs. Dye in the head.75         Smallwood also described Mrs.
    
    Dye's car as a red "LTD."      Thus, by the time of trial, Smallwood
    
    had not only changed his story by claiming that he actually
    
    witnessed the struggle and shooting, but also described it in vivid
    
    detail.     He described the murder weapon as a small black .32
    
    caliber pistol -- which, of course, was the type of murder weapon
    
    used -- and changed his description of the victim's car from a
    
    "thunderbird" to a "LTD."76 Jurors were also not told that, shortly
    
    after the crime, Smallwood described the assailant has having
    
    shoulder-length hair and a moustache -- descriptions given by none
    
    of the other eyewitnesses.
    
    
         75
           When asked to describe what he witnessed, Smallwood
    informed jurors that "[w]ell, me and my partner was standing by
    the gas pump in Schweggman's parking lot. My partner seen this
    guy wrestling with this lady. We thought they was just playing
    with one another, thought they knew one another. So the guy, he
    snatched her hand. When he snatched her hand, she wouldn't
    release the keys from her hand, so he just went up in his pocket
    and shot her in the head . . . [with] like a small .32, a small
    black gun that he took out of his right pocket." When
    specifically asked by prosecutor Strider, "[a]nd did you see him
    actually shoot her?," Smallwood stated "Yeah."
         76
           Smallwood's correction of such minutiae between the time
    of making the contemporaneous witness statement and the time of
    trial raises serious questions in my mind. In particular, the
    embellishment suggests that Smallwood was coached.
    
                                         80
             A second of the four eyewitnesses who testified at trial,
    
    Henry Williams, told police shortly after the murder that the
    
    assailant was "a black male, about 19 or 20 years old, about 5'4"
    
    or 5'5", 140 to 150 lbs., medium build, dark complexion, his hair
    
    looked like it was platted, it was short."               I observe that the
    
    record     makes    numerous    references   to    Curtis    Kyles   as   being
    
    approximately six feet tall and slender; photographs in the record
    
    confirm these descriptions.         Conversely, Joseph "Beanie" Wallace
    
    was described as being shorter than Kyles, perhaps as much as by a
    
    half a foot.       Photographs of Wallace also depict a man possessing
    
    a medium build.
    
              Both of these witness statements, neither of which were
    
    disclosed despite a specific pre-trial request by the defense,
    
    would have been valuable to the defense at trial.                A reasonable
    
    juror could not have reached any other conclusion except that
    
    Smallwood dramatically changed his story by the time of trial,
    
    thereby     undermining   the    credibility      of   his   identification.77
    
    Williams, too, would have had a difficult time explaining how he
    
    could have described a 6' skinny man as being 5'4" or 5'5" and
    
    possessing a "medium" build.
    
    
    
    
         77
           The majority concludes that because "Smallwood
    consistently stated that the gunman . . . drove [Mrs. Dye's car]
    close by him [Smallwood]," Smallwood's identification of Kyles at
    trial was reliable. See Majority Opinion, slip op., at p. 16.
    The majority here ignores the important fact that a jury would
    probably have disbelieved anything that Smallwood said after it
    was revealed that he had fundamentally changed his account of the
    murder by the time of trial.
    
                                          81
         The district court and the majority make much ado about the
    
    fact that all four eyewitnesses who testified at the second trial
    
    positively identified Kyles as the killer after the State brought
    
    in Wallace and had him and Kyles stand side by side for comparison.
    
    I do not believe that fact to be nearly as significant as the
    
    majority    does.      First,   the    same   witnesses   had,    on   numerous
    
    occasions,78 previously identified Kyles in court as the killer, in
    
    identifications in which Kyles sat at the defense table and was not
    
    compared to Wallace.        Three of the four had also seen Kyles -- but
    
    not Wallace -- in photo spreads.            Human nature as it is, the four
    
    had a psychological incentive, subconscious or otherwise, not to
    
    recant their positive identifications of Kyles.
    
              Second, I believe that the in-court identifications by
    
    Williams and particularly Smallwood are of little probative value.
    
    While it is true that in-court identifications are generally
    
    considered significant prosecutorial evidence, see generally Manson
    
    v. Brathwaite, 
    432 U.S. 98
     (1977), such evidence loses a great deal
    
    of its probative force when the defense establishes that a witness
    
    gave a significantly different account at the time of the original
    
    identification, cf. Neil v. Biggers, 
    409 U.S. 188
    , 199 (1972)
    
    (noting    that   a   key   factor    in   deciding   whether    impermissibly
    
    suggestive line-up procedure followed by in-court identification
    
    caused harm to defendant is "the accuracy of the witness' prior
    
         78
           At both trials, the witnesses identified Kyles both in
    pre-trial suppression hearings and during the prosecution's case-
    in-chief. The comparative identifications, in which Wallace was
    made to stand besides Kyles, occurred at the second trial during
    the prosecution's rebuttal.
    
                                           82
    description of the criminal").   Moreover, as the Supreme Court has
    
    observed, the effective impeachment of one eyewitness may have
    
    consequences that extend to another, unshaken eyewitness.         See
    
    United States v. Agurs, 
    427 U.S. 97
    ,
    
     112-13 n.21 (1976) (citing Comment, Brady v. Maryland and The
    
    Prosecutor's Duty to Disclose, 40 U. CHI. L. REV. 112, 125 (1972)).
    
    In Kyles' case, the remaining unimpeached eyewitness testimony
    
    would thus have been considerably less forceful had the two witness
    
    statements been disclosed.
    
          Finally, it should also be generally noted that eyewitness
    
    testimony, contrary to popular belief, has repeatedly been proven
    
    notoriously unreliable.   See United States v. Wade, 
    388 U.S. 218
    ,
    
    228 (1967); Loftus & Ketcham, Witness for the Defense: The Accused,
    
    the Eyewitness, and the Expert Who Puts Memory on Trial (1991);
    
    Sanders, Helping the Jury Evaluate Eyewitness Testimony: The Need
    
    for Additional Safeguards, 12 AMER. J. CRIM. L. 189 (1984).    As the
    
    United States Supreme Court observed in Wade, "[t]he vagaries of
    
    eyewitness identification are well-known; the annals of criminal
    
    law are rife with instances of mistaken identification."      388 U.S.
    
    at 228.79
    
         79
           In a Rule 60(b) motion filed in the district court
    following the denial of the habeas writ, Kyles for the first time
    offered an affidavit from one of the eyewitnesses who testified
    at trial -- Darlene Cahill (now Darlene Kersh) -- in which she
    swears under oath that she perjured herself at Kyles' two trials.
    The affidavit claims that she never in fact saw the murderer's
    face and that her trial testimony, in which she unequivocally
    identified Kyles as the killer, was entirely false. She further
    claims that she informed the prosecution of her inability to
    identify Kyles, but that prosecutors asked her to commit perjury.
    The district court held that the claim based on Cahill's
    
                                     83
    d) The remaining Brady evidence
    
    1) The computer print-out of license plate numbers
    
          Another item of Brady evidence that was wrongly withheld,
    
    according to Kyles, was a New Orleans Police Department computer
    
    print-out   and   attached   cover   memorandum   dated   "9-20-84"   from
    
    
    testimony was an abuse of the writ. The court further held that,
    even if it were not abused, "such evidence would not have
    affected the jury verdict in this case. [Kersh's] testimony was
    cumulative and in the context of the entire trial transcript,
    rather inconsequential. . . . Ms. Kersh's testimony was of
    little consequence in relation to the other eye-witnesses and the
    evidence found in Kyles' girlfriend's apartment."
         In a prior appeal in this case, this court held that Kyles'
    claim was not appropriately raised for the first time in a Rule
    60(b) motion and that further the claim had never been exhausted
    in the state courts. See Kyles v. Whitley, Nos. 92-3310, 92-
    3542 (5th Cir. August 7, 1992). We held that "a habeas
    petitioner may not use Rule 60(b) to raise constitutional claims
    that were not included in his original habeas petition." We
    further held that "[t]he district court should not, however, have
    said anymore" in its order denying relief.
         I believe that this claim should be returned to state court
    so that all of Kyles' specific claims may be reevaluated in view
    of this extremely serious allegation of prosecutorial misconduct
    and perjury -- which, if proven true, would further demonstrate
    the pervasiveness of official misconduct in this case. I note
    that Kyles' this new claim should not be held to be an abuse of
    the writ, assuming that this case makes its way back to federal
    court. As a general rule, I would of course agree that any
    constitutional claims raised for the first time after the
    district court denies an original habeas petition are abused.
    See McClesky v. Zant, 
    111 S. Ct. 1454
     (1991). However, because
    Kyles' new claim adds further fuel to the fire in terms of my
    concerns about whether Kyles was wrongly convicted, I would hold
    that the claim is not abused under the exception that permits
    claims to be raised for the first time in a successive habeas
    petition if a petitioner makes a "colorable showing of factual
    innocence." See id. at 1471.
         I further observe that the "materiality" standard regarding
    intentionally perjured testimony is "considerably less onerous"
    than the Brady "materiality" standard set forth in United States
    v. Bagley. See Kirkpatrick v. Whitley, 
    992 F.2d 491
    , 497 (5th
    Cir. 1993). In cases where the prosecution intentionally
    procured or countenanced perjured testimony, a court must order a
    new trial if there was "any reasonable likelihood that the false
    testimony could have affected the jury's verdict." Id.
    
                                         84
    Detective Patrick Jones to Detective John Dillman.                 The memo
    
    states, "[a]ttached you will find a print out of vehicles which
    
    were parked in the parking lots around Schweggmans [sic] on 9-20-84
    
    at 9:15 p.m."       Kyles argues that this print out, which was not
    
    disclosed to defense counsel at trial, would have been valuable
    
    exculpatory evidence because it tends to prove that Kyles' car was
    
    not in the parking lot on the night of the murder.
    
        At trial, the State introduced a photograph made by police at
    
    the crime scene immediately following the murder.                The blurry,
    
    blown-up photograph, according to the State, depicts a portion of
    
    the top of Curtis Kyles' car, which allegedly was still parked in
    
    the Schwegmann Bros.'s parking lot within an hour or two after the
    
    murder. As I discuss infra, the State's photographic evidence here
    
    is anything but conclusive.        Had Beanie Wallace taken the stand at
    
    trial and repeated his claim made twice to police that he, Kyles,
    
    and Kyles' brother-in-law drove to Schwegmann Bros.'s parking lot
    
    on the evening of Friday, September 21, 1984, to retrieve Kyles'
    
    car, the computer print-out would have been valuable impeachment
    
    material, thus supporting the theory of the defense.80
    
        The district court stated that the print-out "fails to fit the
    
    Brady     mold"   because   at   the   state   post-conviction   evidentiary
    
    hearing "the defense learned that the list was not a complete list
    
    of the cars in the lot at the time; therefore, it is evidence that
    
         80
           Even if Beanie Wallace had claimed that the car was
    retrieved on Thursday early in the evening -- before the license
    numbers were recorded by police -- Wallace's two inconsistent
    statements given to police would have been available to impeach
    Wallace's credibility on this point.
    
                                            85
    would carry little if any exculpatory weight . . . ."                         The
    
    testimony   to   which   the   district    court    referred    was   given    by
    
    Detective   John   Miller,     who   testified     that   the   print-out     was
    
    incomplete and likely did not include the parking lot that was
    
    supposedly depicted in the blown-up police photograph offered into
    
    evidence at trial.
    
        I believe that the district court erred by accepting Miller's
    
    testimony as conclusive.       Assuming the print-out was available to
    
    the defense at the time of trial, defense counsel would have been
    
    free to argue that the list was a complete one.            Indeed, I observe
    
    that the list contains seventeen different license numbers, and the
    
    memorandum attached to it states "attached you will find a print
    
    out of vehicles which were parked in the parking lots around
    
    Schweggmans [sic] on 9-20-84 at 9:15 p.m." (emphasis added).                  The
    
    memorandum does not state that it is a "partial" list or that it
    
    was a list of vehicles in a portion of the Schwegmann Bros.'s
    
    parking lot.     This memorandum, by not qualifying the scope of the
    
    police's search of automobiles in the Schwegmann Bros.'s parking
    
    lots in any manner, belies Detective Miller's claim.                  Finally,
    
    Miller's name does not appear among the five police officers' names
    
    listed on the memorandum.      The issue of whether the list was or was
    
    not complete would have been a quintessential jury question.
    
    
    
    2) The police garbage memorandum
    
            As discussed, supra, with respect to Beanie Wallace's
    
    September 21, 1984 suggestion to police regarding the garbage, the
    
    
                                          86
    State also failed to disclose police memoranda relating to the
    
    search and seizure of the garbage in front of Pinkie Burnes'
    
    apartment on September 24, 1984.     In particular, Kyles points to a
    
    memorandum dated "9-23-84" from Sergeant James Eaton to Sergeant
    
    Dave Morales that states "[w]e have reason to believe" Mrs. Dye's
    
    personal effects and Schwegmann's bags would be in the garbage
    
    scheduled to be picked up by sanitation workers on Monday morning.
    
    Like Wallace's recorded statement to police in which he makes the
    
    garbage tip, I believe that this would have been valuable evidence
    
    that would have bolstered the theory of the defense that Wallace
    
    "framed" Curtis Lee Kyles.
    
    e) The remainder of the State's case
    
          Once the effect of all of the Brady evidence is considered,
    
    what is left of the State's case is tenuous at best.         The majority
    
    points to the fact that the murder weapon, a homemade holster,
    
    bullets,   and   pet   food   supposedly   purchased   by   Mrs.   Dye   at
    
    Schwegmann Bros. were found in Pinkie Burnes' apartment as strong
    
    circumstantial evidence of Kyles' guilt.       I disagree.    Kyles took
    
    the stand and claimed that the weapon and holster did not belong to
    
    him and must have been planted.          While ordinarily such a self-
    
    serving claim indeed would have little weight, the majority ignores
    
    the strong circumstantial evidence that Beanie Wallace in fact
    
    planted evidence -- namely, his tips to police that they "would be
    
    smart" to look in the garbage and they could "set up" Kyles and
    
    find the murder weapon.       The majority also ignores the evidence
    
    
    
    
                                        87
    that Wallace had a ready opportunity to plant the evidence during
    
    the "Sunday dinner" at Pinkie Burnes' residence.
    
               With respect to the pet food found in Pinkie Burnes'
    
    apartment, Kyles testified that he had purchased the cans at the
    
    Schwegmann Bros. -- which was located "very near" Pinkie Burnes'
    
    apartment, according to trial testimony -- during the previous week
    
    or so.     While Kyles claimed that he remembered the items being "on
    
    sale," the State introduced evidence that the particular brands of
    
    pet food were not sale-priced but instead were regularly priced.
    
    The   majority      contends   that   this   testimony   undermines   Kyles'
    
    explanation for the presence of the pet food.            However, a closer
    
    reading of Kyles' testimony undercuts this supposedly damning bit
    
    of impeachment evidence about what was actually a collateral
    
    matter.81       Furthermore, I read Kyles testimony to actually bolster
    
          81
           The alleged existence of a sale price was gratuitously
    offered by Kyles during his testimony. It was not as if the pet
    food allegedly purchased by Kyles and that supposedly purchased
    by Mrs. Dye were distinguishable by the fact that one was on sale
    and the other was not. Indeed, the State's own evidence
    established the contrary. Furthermore, I believe that the State
    and the majority put entirely too much stock in the import of
    Kyles' testimony. The following colloquy occurred between the
    prosecutor and Kyles:
    
               Q. [prosecutor:] How do you know it was on sale?
    
            A. [Kyles:] Because they had a little sign that said
    three for such and such, two for such and such at a cheaper
    price. It wasn't even over a dollar.
    
               Q.    There was a sign where?
    
            A. In the Schwegmann's Supermarket. . . . It wasn't
    big. It was a little bitty piece of slip like they had on the
    shelf. As I was looking at the cat food, I was looking at these
    many for so much. [sic].
    
    
                                           88
    his credibility in one significant respect. Before being shown the
    
    cans by the prosecutor -- cans that were seized and in the
    
    possession of the State at trial -- Kyles stated that the pet food
    
    cans were priced "two" or "three for such and such . . . .                     It
    
    wasn't even over a dollar."            During cross-examination, the cans
    
    were first introduced by the prosecutor after Kyles had testified
    
    about them being "on sale."            The prices were revealed as in fact
    
    being "two for 77 cents" and "three for 89 cents."                   The actual
    
    prices   of    the   cans   fully   and       precisely   comport   with   Kyles'
    
    description.         I   simply   do    not     believe   that   this   is   mere
    
    coincidence.     Also with respect to Kyles' claim that he purchased
    
    the pet food for his children's own pets, the state habeas courts
    
    and the federal district court ignored the important fact that one
    
    of the State's own photographs offered into evidence at trial
    
    depicts the inside of a closet in the apartment in which a half-
    
    empty bottle of pet shampoo is clearly visible.
    
        The State also has argued that the Schwegmann's sales receipt
    
    bearing Kyles' fingerprints that was found in Mrs. Dye's car is
    
    
    
             Q.     They had two different signs [for the two brands
    purchased]?
    
              A.    They have a sign by every item in there.
    
         Kyles, whose intelligence is limited, see Kyles v. State,
    513 So.2d at 274 (noting Kyles' IQ is 83), appears to me to have
    been inartfully explaining that he believed that the cans of pet
    food were "on sale" simply because they were marked two or three
    for a particular price. His reference to a sale "sign" actually
    appears to be referring to stock labels that are commonly used in
    grocery stores and regularly appear on the shelf (as he stated,
    "a little bitty piece of slip like they had on the shelf . . . .
    They have a sign by every item in there.").
    
                                             89
    strong circumstantial evidence against Kyles. Kyles testified that
    
    he indeed did ride in the car, which Wallace at that point
    
    possessed, on the Friday, September 21, 1984 -- one day after the
    
    murder. Kyles stated that Wallace came by Pinkie Burnes' residence
    
    and the two drove to Schwegmann Bros., where Kyles purchased a can
    
    of transmission fluid and a package of cigarettes.82         At trial,
    
    Kyles theorized that the receipt must have fallen out of the bag
    
    into the car when he removed the items.    As noted in supra Part I.,
    
    the receipt was the only physical evidence offered by the State
    
    that bore Kyles' fingerprints.      Not the murder weapon.     Not the
    
    purse or any other of Mrs. Dye's belongings.       And not Mrs. Dye's
    
    car.
    
                Under scrutiny, the sales receipt, like the rest of the
    
    State's evidence, not only fails to incriminate Kyles but actually
    
    supports the theory of the defense.     To begin with, the receipt was
    
    only approximately two inches long.     Yet Mr. Dye testified that he
    
    believed that his wife was shopping for an entire week's groceries
    
    not only for Mr. and Mrs. Dye, but also for houseguests.       Mr. Dye
    
    testified that his wife usually brought home six or eight bags of
    
    groceries whenever she went shopping at Schwegmann Bros.83         The
    
    
           82
           As discussed in supra Part I., Wallace's various
    statements indicate he was in fact in possession of the car, as
    Kyles claimed, at least by Friday. To corroborate his claim that
    he bought transmission fluid for his car, Kyles also offered into
    evidence a color photograph of his car apparently leaking some
    type of oily fluid.
           83
           Perhaps the only consistent point in all of Wallace's
    statements to police was that there were numerous bags of
    Schwegmann Bros.'s groceries in Mrs. Dye's car.
    
                                       90
    State never explained the obvious variance between the length of
    
    the receipt with Kyles' fingerprints on it and the length of the
    
    receipt that would have resulted from a week's grocery-shopping.
    
        Also notable is the fact that a State's witness who testified
    
    about the receipt stated that the receipt was recovered from "the
    
    right front floorboard," i.e., the passenger's compartment.   Kyles
    
    testified that Wallace drove him to     Schwegmann Bros. and, thus,
    
    his claim is consistent not only with the length of the receipt but
    
    also the placement of it in the passenger's compartment.    Because
    
    the police destroyed writing on the receipt in removing Kyles'
    
    fingerprints from it, there is no way to know with certainty
    
    whether the receipt in fact memorialized a purchase on the day of
    
    the murder or on the next day, as Kyles claimed.       However, the
    
    circumstantial evidence supports Kyles' version of events.
    
        The last significant piece of evidence offered by the State at
    
    trial was a blurry, blown-up photograph of what the State claimed
    
    is Kyles' rust-colored Mercury parked in the Schwegmann Bros.'
    
    parking lot shortly after the murder.   The blow-up is actually part
    
    of a crime-scene photograph taken immediately after the murder.
    
    Apparently, the police discovered what they believed was Kyles' car
    
    well after the time of the crime.       The photograph shows only a
    
    small fraction of the right side of a tan, orange, or perhaps rust
    
    colored American-made car, which appears to be a two-door model and
    
    which has a vinyl top.   It is impossible to discern the make or
    
    model of the car.   The State also offered two pictures of Kyles'
    
    rust-colored Mercury, which also has a vinyl top, although the
    
    
                                    91
    pictures   only   depict   the    car    from    the   front   and   back;   the
    
    photograph of the back of Kyles' car is of limited value since the
    
    trunk is open, which blocks the vast majority of the backside.
    
    There is no way to identify whether the vehicle in the crime-scene
    
    photograph is Kyles' car.        Thus, the State's photographic evidence
    
    here is of extremely limited -- if any -- probative value.84
    
    
    
        Finally, it seems that at least some weight should be given to
    
    the many witnesses who testified in Kyles' defense.                   Numerous
    
    witnesses testified that Beanie Wallace was not only in possession
    
    of a bright red automobile resembling Mr. Dye's car immediately
    
    after the time of the murder, but also that Wallace was anxious to
    
    sell the car.     Those witnesses also testified that Wallace's hair
    
    was braided.      Although those witnesses were either friends or
    
    family of Kyles, at least two of them -- Ronald Gorman and Johnny
    
    Burnes -- were      also   friends      of   Wallace.85    Another    of   those
    
    witnesses, Kevin Black, was employed as a security guard for the
    
         84
           I am curious as to why the State did not offer a
    photograph of Kyles' car from the same angle as the car depicted
    in the crime-scene photograph -- which would have greatly
    facilitated a comparison. The crime-scene photo reveals the
    angle of the vinyl top on the car and also shows a large metal
    strip of molding that runs along the edge of the vinyl top. The
    State's photographs of Kyles' car reveal neither the angle of his
    vinyl top nor whether there is metal molding comparable to that
    on the car in the crime-scene photograph. The small portion of
    the vinyl top of Kyles' car appears not to have metal molding
    running along the edge, although I cannot be certain from the
    State's photographs.
         85
           In Wallace's first recorded statement, he repeatedly
    refers to Johnny Burnes as his "partner" and housemate. In a
    subsequent statement, Wallace stated that he drove around the
    French Quarter with Gorman on the night after the murder.
    
                                            92
    municipal airport in New Orleans -- a position of some trust, which
    
    reflects positively on his credibility. Two defense witnesses also
    
    testified that Beanie Wallace had romantic aspirations for Pinkie
    
    Burnes, thus providing an additional motive for Wallace to frame
    
    Kyles.86
    
                                 III.
    
              In conclusion, after a painstaking review of the entire
    
    record, I am convinced that Curtis Lee Kyles should receive a new
    
    trial.     As a result of both a series of Brady violations and a
    
    related ineffective-assistance-of-counsel violation, Kyles' jury
    
    was not permitted to consider much of the relevant evidence.
    
    Because my confidence in both the jury's guilty verdict and death
    
    sentence are undermined, I would grant the writ of habeas corpus.
    
        Judge Learned Hand once wrote that "[o]ur procedure has always
    
    been haunted by the ghost of an innocent man convicted.   It is an
    
    unreal dream." United States v. Garrson, 
    291 F. 646
    , 649 (S.D.N.Y.
    
    
    
         86
           As discussed in connection with Wallace's first recorded
    statement, it was also obvious that Wallace hoped to receive
    remuneration for assisting the police. As he told police during
    the September 22 conversation, "I ain't doin' this for nothing,
    you know." An additional motive is evident from statements that
    Wallace made during the first recorded conversation with New
    Orleans police. Among other things, Wallace stated:
    
         i) "I betcha . . . I can get in a lot of trouble with
         the shit?" -- making reference to the fact that he was
         in possession of Mrs. Dye's car;
    
         ii) "Am I going to jail?"; and
    
         iii) Wallace stated that he feared that "I would be charged"
         with Mrs. Dye's murder because "a [black] male . . . in his
         twenties" committed the murder.
    
                                        93
    1923).   I fear that in this instance it is not simply a dream.   I
    
    therefore dissent.
    
    
    
                                 APPENDIX A
    
    
    
    
                              Curtis Lee KYLES
    
    
    
                                   versus
    
    
    
             John WHITLEY, Warden Louisiana State Penitentiary,
    
                             Angola, Louisiana.
    
    
    
                            Civ. A. No. 90-4031.
    
               United States District Court, E.D. Louisiana.
    
                              March 24, 1992.
    
    
    
    ARCENEAUX, District Judge.
    
                             ORDER AND REASONS
    
         Petitioner Curtis Lee Kyles seeks a writ of habeas corpus
    
    testing his conviction of capital murder and his sentence of death.
    
    His execution was stayed by order of this court on November 2,
    
    1990.
    
                           Procedural Background
    
         On December 7, 1984, Curtis Lee Kyles ("Kyles") was convicted
    
    of first degree murder under La.Rev.Stat. 14:30 and was sentenced
    
    
                                     94
    to death.    His conviction and death sentence were affirmed by the
    
    Louisiana    Supreme     Court   in    State    v.   Curtis   Lee    Kyles,   No.
    
    86-KA-0800,87 which was rendered on September 9, 1987; rehearing was
    
    denied on October 17, 1987. Petitioner then applied to the Supreme
    
    Court of the United States for a Writ of Certiorari which was
    
    denied without evidentiary hearing on May 23, 1988;                 rehearing was
    
    denied on August 17, 1988.
    
         On January 2, 1989, Kyles petitioned the Criminal District
    
    Court for the Parish of Orleans, State of Louisiana, for a Stay of
    
    Execution,     Post-Conviction        Relief,    Writ    of   Habeas     Corpus,
    
    Evidentiary Hearing, and Motion for New Trial on the basis of newly
    
    discovered evidence.        Kyles alleged in this petition that his
    
    constitutional rights had been violated in twenty ways.                 Kyles was
    
    not granted an evidentiary hearing, and his application was denied
    
    on January 6, 1989.       This decision was appealed to the Louisiana
    
    Supreme Court by Application for Supervisory Writ.              The Louisiana
    
    Supreme Court granted the application for the writ and ordered an
    
    evidentiary hearing in the criminal district court.
    
         An    evidentiary    hearing     was    conducted   intermittently       from
    
    February 20, 1989, to June 1, 1989.             Judge Dennis Waldron of the
    
    Criminal     District    Court   for     the    Parish   of   Orleans     denied
    
    petitioner's motions and rendered a judgment.88
    
    
    
         87
          
    513 So. 2d 265
     (La. 1987), cert. denied, 
    486 U.S. 1027
    ,
    reh'g denied, 
    487 U.S. 1246
     (1988).
         88
          Judge Waldron has presided over all of the proceedings in
    this matter in criminal district court.
    
                                            95
         On    April     2,    1990,     petitioner    filed     an        Amended      and
    
    Supplementary Application for Supervisory Writs to Review Final
    
    Judgment of the Criminal District Court for the Parish of Orleans,
    
    Section "F", denying State Order and Post Conviction Relief.                         On
    
    September 14, 1990, the Louisiana Supreme Court in a 5 to 2
    
    opinion, denied the application without reasons.
    
         On September 28, 1990, the Louisiana Supreme Court denied a
    
    motion for a stay order and suggested that Kyles apply to the
    
    federal court system.
    
         On    October   2,    1990,     Judge   Waldron    issued     a    Warrant     of
    
    Execution ordering Kyles to be executed on November 8, 1990.                     Kyles
    
    then petitioned      the    United    States   Supreme     Court       to    stay   the
    
    execution.     The Supreme Court denied that motion on October 26
    
    1990.
    
         Kyles then filed the instant petition requesting a stay of
    
    execution under 28 U.S.C. s 2254. After having filed the petition,
    
    Kyles supplemented it by adding a claim that the electric chair,
    
    then in use in Louisiana, violated his constitutional rights. This
    
    claim had not been exhausted in the state court system;                     therefore,
    
    this court allowed Kyles to withdraw the supplemental petition to
    
    pursue those claims in the Louisiana court system.
    
         The     criminal      district    trial    court     denied        defendant's
    
    electrocution-based writ application. Kyles then applied for writs
    
    to the Louisiana Supreme Court which were denied on May 24, 1991.
    
    On June 5, 1991, the court received notification of the Louisiana
    
    Supreme Court's decision and a request that it take up this issue
    
    
                                            96
    as well as those held in abeyance at that time.           Kyles objected to
    
    this    course   of   action    because   he   intended     to   raise   the
    
    electrocution issue by writ to the United States Supreme Court.
    
           On June 25, 1991, Louisiana changed its method of execution
    
    from electrocution to lethal injection.         The law became effective
    
    on September 25, 1991, thereby mooting this issue.
    
           This   court   ordered    additional    briefing    concerning    any
    
    developments in the law since the time that the petition was
    
    originally filed which briefing was received in early September of
    
    1991.
    
           The Court has reviewed in detail, inter alia, the transcripts
    
    of the hearing held on Kyles' motion to suppress identification and
    
    on his motion to suppress evidence; the trial transcript and
    
    evidence adduced in that proceeding; and the post-trial proceedings
    
    transcripts and the evidence adduced there; the copious pleadings,
    
    briefings, exhibits, and statements filed in conjunction thereto,
    
    and the applicable law.        The Court firmly believes that Kyles was
    
    given a fundamentally fair trial with able assistance by counsel.
    
    For the reasons that follow, the Court rejects Kyles' petition for
    
    habeas corpus relief.
    
                               Facts of the Case
    
           At approximately 2:20 p.m. on September 20, 1984, Mrs. Dolores
    
    Dye, a 58-year old white female was murdered in the parking lot at
    
    Schwegmann's Giant Supermarket at 5300 Old Gentilly Road, New
    
    
    
    
                                         97
    Orleans, Louisiana.89        Four people who witnessed the incident
    
    testified at the trial.
    
         The testimony established that a black man accosted the victim
    
    as she placed her groceries in the trunk of a red Ford LTD.               One
    
    witness testified that the victim threw her purse into the trunk,
    
    slammed the lid, and tried to get away.          The assailant chased her
    
    and wrestled her to the ground.            When she attempted to escape
    
    again, the robber grabbed her arm, drew a revolver from his
    
    waistband,     and   fired   it   into   her   left   temple,   killing   her
    
    instantly.     The gunman then took her keys from her hand, got into
    
    her car, and drove slowly from the parking lot.
    
         The police were aided in their investigation when on Saturday
    
    night at about 10:00 p.m. Joseph "Beanie" Wallace informed police
    
    investigators he had purchased a red Ford LTD the previous day from
    
    defendant.90    The police determined that the car was registered in
    
    the victim's name.
    
         After having ascertained Kyles' name and address from Beanie,
    
    who specifically pointed out Kyles' apartment to the authorities,
    
    
         89
          The facts of this case are set out in great detail in
    State v. Kyles, 
    513 So. 2d 265
     (La. 1987). It should also be
    noted at the outset that the first trial of Kyles for this murder
    ended in a mistrial after four hours of deliberation by a jury.
    This conviction arises from a second trial.
         90
          At the post-conviction hearing, Detective John Miller
    testified that he had spoken to Beanie on no more than half a
    dozen occasions concerning various, unrelated shootings. This
    instance was the first that Detective Miller could use Beanie's
    information because it was a homicide. (Transcript of Post-
    Conviction Relief Hearing, Detective Miller, February 24, 1989,
    at 3.) The court notes this fact because of petitioner's
    allegations that Beanie was an unreliable source.
    
                                         98
    the police picked up five identical sacks of garbage outside of his
    
    home at approximately 1:00 a.m. on September 24, 1984.    Inside one
    
    of these garbage bags, the victim's purse and personal belongings
    
    were found.   At 6:07 p.m. on September 23, 1984, a search warrant
    
    for Kyles' house was issued.
    
         At approximately, 10:00 a.m. on the 24th of September, 1984,
    
    Kyles was arrested outside his home.       Police recovered a .32
    
    revolver, which was later determined to be the murder weapon, from
    
    behind the stove in his kitchen, as well as a hand-made holster,
    
    which fit the murder weapon and which was found in a chifferobe in
    
    the hall, various boxes of ammunition containing bullets which
    
    could be used in the murder weapon, and a rifle.      In a kitchen
    
    cabinet, the police found groceries in Schwegmann's bags, including
    
    brands of dog and cat food normally purchased by the victim.
    
         Partial fingerprints were found on the victim's effects, but
    
    none was sufficient for a positive identification. No fingerprints
    
    were found on the .32 revolver or in the LTD, although defendant's
    
    prints were recovered from a Schwegmann's cash register receipt
    
    found on the floor of the car.   However, the chemical process used
    
    to raise the fingerprints on the register receipt destroyed the
    
    inked printing on the paper, thus making it impossible to determine
    
    what the receipt was for or when the purchase was made.
    
         Three of the eye-witnesses to the murder picked defendant out
    
    of photographic line-ups conducted on September 24, 1984.     These
    
    witnesses, as well as a fourth who had not been asked to make a
    
    
    
    
                                     99
    photographic identification, also positively identified defendant
    
    at trial as the murderer.
    
         The defense contended at trial that the informant, "Beanie"
    
    had actually committed the murder and had framed Kyles.                        The
    
    defense presented several witnesses who saw Beanie in a red car
    
    similar to the victim's about an hour after the killing.91                Other
    
    witnesses testified that Beanie had attempted to sell the car
    
    shortly after the murder.
    
         The linchpin of the defense, however, was the defense's theory
    
    that Beanie had planted all of the incriminating evidence on Kyles.
    
    Evidently,    a   Sunday    dinner   was    served   at   Kyles'    "home"92    on
    
    September 23, 1984.        Testimony conflicted greatly as to the number
    
    of adults present at the meal and what was served.                 The defense
    
    maintains that it was then that Beanie framed Kyles.
    
         To that end, Johnny Burnes, Kyles' common-law-brother-in-law,
    
    testified that he saw Beanie stoop down behind the stove where the
    
    gun was found.     (Trial Transcript, Burnes' Testimony, pp. 259-89,
    
    at 263.)     Kyles testified that the holster was not his and must
    
    have been planted in the chifferobe.             The same explanation was
    
    given with respect to all of the ammunition.                   Kyles further
    
    testified that the rifle found belonged to Beanie.                 He explained
    
    
         91
          All of these witnesses were either close friends of the
    defendant or related to the defendant's girlfriend and mother of
    his children, "Pinky" Burnes.
         92
          The cour uses the term "home" loosely. The apartment in
    question was the apartment of Kyles' girlfriend where she resided
    along with her four children by Kyles and where he evidently
    stayed with some frequency.
    
                                          100
    that because Kyles had lent Beanie $20.00, Beanie had given him the
    
    rifle as collateral.       (Trial Transcript, Kyles' Testimony, pp.
    
    318-374, at 319).       The motive for this "frame job" was Beanie's
    
    alleged     romantic   interest   in    Martina   "Pinky"    Burnes,   Kyles'
    
    common-law wife and mother at that time of four of his children, as
    
    previously noted.
    
           Kyles denied any involvement in the shooting, explaining his
    
    fingerprints on the cash register receipt by asserting that Wallace
    
    had picked him up in a red car the day after the murder and had
    
    taken him to Schwegmann's where he purchased transmission fluid for
    
    his car and a pack of cigarettes.            He suggested that the receipt
    
    might have fallen from the bag when he removed the cigarettes.               As
    
    to an explanation concerning the presence of dog and cat food,
    
    there was varying and conflicting testimony from all of the defense
    
    witnesses as to whether or not Kyles or his children had a dog or
    
    cat.
    
           On rebuttal, Beanie was brought into the courtroom.             Each of
    
    the four eye-witnesses attested that Kyles, not Beanie, was the
    
    person that each saw commit the crime.          The jury and the court were
    
    given the opportunity to see any possible resemblance between the
    
    two.
    
           After being charged and deliberating, the jury unanimously
    
    found defendant guilty of first degree murder.
    
           In   the   sentencing   phase,   the    prosecutors   relied    on   the
    
    evidence adduced during the guilt phase of the trial.            The defense
    
    called two of the defendant's sisters and two of his brothers who
    
    
                                           101
    testified that defendant had a close relationship with his children
    
    and loved and supported them.       Defendant also took the stand and
    
    continued to assert his innocence.
    
          The jury unanimously recommended the death penalty, finding as
    
    the   sole   statutory   aggravating   circumstance    that   the   killing
    
    occurred during the commission of an armed robbery.
    
          At   the   post-conviction   hearing   ordered   by   the   Louisiana
    
    Supreme Court, the trial court received testimony concerning twenty
    
    issues, among other things, alleged Brady materials which had not
    
    been turned over to defendant, ineffectiveness of counsel, and
    
    approximately 18 other violations.        After the hearing which was
    
    conducted on intermittent days, Judge Waldron issued a judgment
    
    denying Kyles' motion for a new trial and the relief sought in his
    
    Writ of Habeas Corpus.
    
          As previously stated, petitioner then filed an Amended and
    
    Supplementary Application for Supervisory Writs to Review Final
    
    Judgment of the Criminal District Court for the Parish of Orleans
    
    on April 2, 1990.        After the Supreme Court of Louisiana denied
    
    writs without written reasons, the same issues were raised by
    
    counsel for Kyles in the instant s 2254 petition which the Court
    
    will now address.
    
                                 Issues Presented
    
          I. Denial of Motion for Stay of Execution, Evidentiary Hearing
    
          and Motion for a New Trial
    
          Kyles claims a violation of his due process rights under the
    
    Sixth, Eighth and Fourteenth Amendments to the United States
    
    
                                       102
    Constitution because Judge Waldron denied his Motion for Stay of
    
    Execution, Evidentiary Hearing and Motion for New Trial without a
    
    hearing on January 6, 1989.      Petitioner states, "Based upon the
    
    true allegations set forth in the Application for Supervisory and
    
    Remedial Writs, Curtis Kyles should have prevailed."
    
         First, it appears from the recitation of the procedural
    
    history of this case as supplied by Kyles that the Supreme Court
    
    ordered an evidentiary hearing in Criminal District Court on the
    
    motion for new trial and the writ of habeas corpus contained in
    
    defendant's   January   2,   1989,    pleadings,   which   hearings   were
    
    conducted over a period of months from February 20, 1989 to June 1,
    
    1989, and which served as the basis for Judge Waldron's judgment
    
    dated November 9, 1989.      Thus, it seems illogical to argue that
    
    Kyles' rights were violated when the Supreme Court of Louisiana,
    
    acting upon Kyles' applications for relief, ordered a hearing for
    
    that precise purpose and the criminal district court obeyed that
    
    order.
    
         Furthermore, as previously noted, filed in conjunction with
    
    the motion for new trial and motion for an evidentiary hearing, was
    
    Kyles' application for a writ of habeas corpus.       As such, the state
    
    court proceedings of which Kyles complains were collateral in
    
    nature and not direct challenges to the validity of his conviction.
    
    The state court's alleged error in the conduct of its habeas
    
    proceedings presents no constitutional violation.           See Byrne v.
    
    Butler, 
    845 F.2d 501
    , 509-10 n. 8 (5th Cir.), cert. denied, 
    487 U.S. 1242
    , 
    108 S. Ct. 2918
     (1988); Millard v. Lynaugh, 
    810 F.2d 103
    1403, 1410 (5th Cir.), cert. denied, 
    484 U.S. 838
    , 
    108 S. Ct. 122
    
    (1987).   This claim is without merit.
    
         II. Brady Violations
    
         Kyles maintains that the state failed to meet its obligations
    
    to provide to defendant exculpatory materials under Brady v.
    
    Maryland, 
    373 U.S. 83
     (1963), and its progeny.         The materials
    
    claimed to have been wrongfully withheld are:
    
         A. a recorded statement obtained when the officers, following
    
         up on Beanie's phone call concerning Mrs. Dye's vehicle, met
    
         Beanie;
    
         B. a computer print out which listed license plate numbers of
    
         the cars in Schwegmann's parking lot on the evening of the
    
         murder;
    
         C. an inter-office memorandum directing Kyles' garbage to be
    
         picked up with the implication that evidence was to be found
    
         therein.
    
         The suppression by a prosecutor of evidence favorable to and
    
    requested by an accused violates due process when the evidence is
    
    material either to guilt or to punishment, irrespective of the
    
    prosecutor's good or bad faith under Brady.      Id.    However, the
    
    non-disclosed evidence must be material.        The suppression of
    
    evidence violates due process "only if it deprives the defendant of
    
    a fair trial."   United States v. Bagley, 
    473 U.S. 667
    , 678, 
    105 S. Ct. 3375
    , 3381 (1985).    "Evidence is material only if there is a
    
    reasonable probability that, had the evidence been disclosed to the
    
    defense, the result of the proceeding would have been different.
    
    
                                     104
    A 'reasonable probability' is a probability sufficient to undermine
    
    confidence in the outcome."         Id., 473 U.S. at 682, 105 S.Ct. at
    
    3383.
    
         Petitioner has urged this court to adopt a heightened standard
    
    in this instance in relation to the "harmful effect of withheld
    
    exculpatory evidence in capital sentencing."            (Memorandum of Facts
    
    and Law filed in conjunction with Petition at 40).              Kyles urges
    
    instead to use the "no effect" standard found in Caldwell v.
    
    Mississippi,    
    472 U.S. 320
       (1985),   or   the   "harmless   beyond a
    
    reasonable doubt" standard referred to in Satterwhite v. Texas, 
    486 U.S. 249
     (1988). While this court declines petitioner's invitation
    
    to use these different standards in its analysis, it notes that
    
    even if it did, it would find that the evidence withheld did not
    
    have any adverse-due process effect, no matter which of the three
    
    standards were applied.
    
         A. The Recorded Statement
    
         The recorded statement at issue was made by the police simply
    
    as a precaution for the officer who was wearing the "wire."              The
    
    police file was not turned over the district attorney until after
    
    the trial.   Thus, the prosecution did not have the information to
    
    turn over in a timely fashion.
    
         Kyles alleges that had he had the tape recording he would have
    
    learned that:
    
         1) Beanie knew in what area of Schwegmann's parking lot the
    
         murder was committed;
    
    
    
    
                                         105
           2) Beanie had said that Kyles wore a "bush" hairstyle in
    
           contrast to testimony that the killer had "plaits";
    
           3) Beanie asked for $400 for the purchase price of the
    
           victim's car and was assured by the police that he would be
    
           paid;
    
           4) Beanie suggested to the police officers that Kyles might
    
           put incriminating evidence in his garbage; and
    
           5) Beanie feared apprehension because he had been seen driving
    
           the Dye automobile.
    
           First, the characterization of these "facts" being established
    
    by this tape as argued in Kyles' petition is not a fair rendition
    
    of the material contained in the tape itself.           Secondly, the
    
    material does not exculpate Kyles. Finally, as to fitting "hand in
    
    glove" with the defense's position that Beanie framed Kyles, the
    
    fact is that after reviewing all of the testimony presented, the
    
    defense's theory has no viable or credible evidence to support it.
    
    In this court's judgment, the jury's verdict would not have been
    
    different had this information been available to the defense.
    
           B. The Computer Print-Out
    
           With respect to the computer print-out, at the evidentiary
    
    hearing, the defense learned that the list was not a complete list
    
    of the cars in the lot at that time; therefore, it is evidence
    
    which would carry little if any exculpatory weight and bears so
    
    little materiality that it fails to fit the Brady mold. (Post-
    
    Conviction Hearing, Detective John Miller, February 24, 1989, at
    
    11).
    
    
                                       106
         C. The Inter-Office Memo
    
         The court rejects the Brady argument with regard to the
    
    interoffice memo concerning the statement that "[w]e have reason to
    
    believe the victim's personal papers and the Schwegmann's bags will
    
    be in the trash."       First the only "garbage" statement contained in
    
    the transcript of the tape is Sergeant Eaton's recital that Beanie
    
    said, "his garbage goes out tomorrow said if he's smart he'll put
    
    it in garbage.        He said but he ain't that smart."(sic)93         Sergeant
    
    Eaton did order the garbage to be picked up, but the bags that were
    
    picked    up   were    identical,   which      renders   improbable,    if   not
    
    impossible, the defense's argument that Beanie planted a bag of
    
    garbage.
    
         To that end, the defense asks this court to rely on the
    
    hearsay statement of Martina "Pinky" Burnes, who defense counsel
    
    Martin Regan said that he could not rely upon in preparing Kyles'
    
    defense.       Pinky stated that Steve Turner, who lived with the
    
    Burneses (as did "Beanie"), told her that he saw Beanie take a
    
    garbage bag and fill it with garbage from the neighbors' trash on
    
    North Dorgenois Street in the evening hours of Sunday, September
    
    23, 1984, "apparently to drop off the garbage bag in which he had
    
    placed     Mrs.   Dyes'    purse    in     front   of    Curtis'   residence."
    
    (Post-Conviction Hearing, Testimony of Martina Burnes, April 7,
    
    1989, at 21-22).         In order to give any credence to this story,
    
         93
          Eaton also testified that the transcript of the tape was
    incorrect in that Eaton is the one who made the comment that
    "[Kyles] was not that smart," because Eaton "did not want Beanie
    to have any knowledge of what [Eaton] may do later." (Post-
    Conviction Hearing, Sergeant Eaton, March 3, 1989, at 65).
    
                                             107
    Beanie would have to have known and used the same type garbage bags
    
    that Kyles used since they all resemble one another.                  This court
    
    finds Martina's testimony incredible considering that she had the
    
    opportunity to raise these points before Kyles' trial and did not.
    
         A complete reading of the record convinces this court of
    
    Kyles' guilt and that he received a fair trial.                  The positive
    
    identification by four witnesses of Kyles as the perpetrator when
    
    each witness was given the opportunity to view Kyles and Beanie
    
    together, combined with the jury's opportunity to compare these two
    
    individuals to decide whether they had a reasonable doubt that
    
    Beanie could be mistaken for Kyles, combined with the varying and
    
    inconclusive testimony of Kyles' friends, leads this court to the
    
    ineluctable conclusion that the Brady materials were not material,
    
    that they would have made no difference in the outcome of this
    
    trial, and that there is no probability (much less a reasonable
    
    probability)     that   disclosure   of    any   of    the   so-called    "Brady
    
    materials" would have changed the result of the proceedings.
    
    III. Ineffective Assistance of Counsel
    
         Kyles has alleged nine errors of counsel prior to trial, nine
    
    errors of counsel during trial, and two errors after trial, which
    
    Kyles   claims    resulted   in   his      having     been   denied    effective
    
    assistance of counsel in contravention of his Fourth, Fifth, Sixth,
    
    Eighth and Fourteenth Amendment rights. Defendant asserts that had
    
    he received effective assistance of counsel "there is a reasonable
    
    probability, if not a certainty, that the outcome of both the guilt
    
    
    
    
                                         108
    phase   and   the   sentence   phase   of   his    trial   would    have   been
    
    different.    Strickland v. Washington, 
    466 U.S. 668
     (1984)."
    
         Under Strickland, Kyles is required to satisfy a two part test
    
    to merit relief on claims of ineffective assistance of counsel:
    
         First, the defendant must show that counsel's performance
    
         was deficient ... that counsel was not functioning as the
    
         "counsel" guaranteed ... by the Sixth amendment. Second,
    
         the defendant must show that the deficient performance
    
         prejudiced his 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.
    
    Id., 466 U.S. at 687, 104 S.Ct. at 2064.          Only if petitioner proves
    
    both elements, is he entitled to relief.
    
         "The proper measure of attorney performance remains simply
    
    reasonableness under prevailing professional norms."               Strickland,
    
    466 U.S. at 690, 104 S.Ct. at 2065.         However, this means that the
    
    court must not employ hindsight in making its fair assessment of
    
    defendant's claims.     The court "must judge the reasonableness of
    
    counsel's challenged conduct on the facts of the particular case,
    
    viewed as of the time of counsel's conduct.          Id. 
    466 U.S. 690
    , 204
    
    S.Ct. at 2066; Earvin v. Lynaugh, 
    860 F.2d 623
    , 625 (5th Cir.1988),
    
    cert. denied, 
    489 U.S. 1091
    , 
    109 S. Ct. 1558
     (1989).
    
         Second, Kyles must demonstrate that there is a reasonable
    
    probability that but for counsel's conduct, the result of the
    
    
    
    
                                       109
    proceeding would have been different. Strickland, 466 U.S. at 697,
    
    104 S.Ct. at 2069.         As stated by the Strickland court:
    
                The governing legal standard plays a critical role
    
         in defining the question to be asked in assessing the
    
         prejudice      from    counsel's      errors.      When   a     defendant
    
         challenges a conviction, the question is whether there is
    
         a reasonable probability that, absent the errors, the
    
         fact finder would have had a reasonable doubt respecting
    
         guilt. When a defendant challenges a death sentence such
    
         as the one at issue in this case, the question is whether
    
         there is a reasonable probability that absent the errors,
    
         the    sentencer--including          an    appellate    court,    to    the
    
         extent it independently weighs the evidence--would have
    
         concluded that the balance of aggravating and mitigating
    
         circumstances did not warrant death.
    
                In making this determination, a court hearing an
    
         ineffectiveness claim must consider the totality of the
    
         evidence before the judge or jury.               Some of the factual
    
         findings will have been unaffected by the errors, and
    
         factual    findings      that   were       affected    will   have     been
    
         affected in different ways.               Some errors will have had a
    
         pervasive effect on the inferences to be drawn from the
    
         evidence, altering the entire evidentiary picture, and
    
         some    will    have     had    an    isolated,       trivial    effect.
    
         Moreover, a verdict or conclusion only weakly supported
    
         by the record is more likely to have been affected by
    
    
                                              110
         errors than one with overwhelming record support. Taking
    
         the unaffected findings as given, and taking due account
    
         of the effect of the errors on the remaining findings, a
    
         court making the prejudice inquiry must ask if the
    
         defendant has met the burden of showing that the decision
    
         reached   would   reasonably    likely     have   been   different
    
         absent the errors.
    
    Id. 466 U.S. at 697-98, 104 S.Ct. at 2068-69.
    
         Finally, this circuit has held that if a state court record is
    
    clearly adequate to fairly dispose of the claims of inadequate
    
    representation,   further   inquiry       is   unnecessary.     De   Luna   v.
    
    Lynaugh, 
    873 F.2d 757
     (5th Cir.1989), cert. denied, 
    493 U.S. 900
    ,
    
    
    110 S. Ct. 259
     (1989).     In this instance, the court finds that the
    
    state court record meets this standard, and thus, this court will
    
    not entertain another evidentiary hearing.94
    
         Within this framework the following issues were raised by
    
    petitioner:
    
         A. Ineffective Assistance Prior to Trial95
    
         94
          It is important to also note that a state court's findings
    of fact are entitled to a presumption of correctness under
    § 2254(d) unless one of the eight exceptions is present. 28
    U.S.C. § 2254(d). The presumption of correctness extends to
    implicit fact findings. Thompson v. Linn, 
    583 F.2d 739
    , 741-42
    (5th Cir. 1978).
         95
          Petitioner had Attorney Samuel Dalton testify at the
    post-conviction evidentiary hearing. Mr. Dalton was presented as
    an "expert" in defense of death penalty cases. As a hired
    expert, it is not surprising that he opined that with all of the
    "errors" committed by counsel Martin Regan, an entirely different
    trial would have ensued. However, this court cannot approach
    this question as though it has no experience in trial advocacy
    and the rigors of criminal cases.
    
                                        111
         1. Kyles alleges that counsel was ineffective with respect to
    
    the motion to suppress evidence recovered from the garbage, because
    
    he did not call as a witness Detective Miller, another policeman
    
    involved in the investigation who, defendant maintains, would have
    
    testified that the garbage was picked up because of Beanie's tip.
    
         This claim is without merit for various reasons.                 To begin
    
    with, defendant has no constitutional right of privacy in his
    
    garbage.     California v. Greenwood, 
    486 U.S. 35
    , 
    108 S. Ct. 1625
    ,
    
    1628-30 (1988); United States v. Vahalik, 
    606 F.2d 99
    , 100-01 (5th
    
    Cir.1979);      Louisiana v. Kyles, 
    513 So. 2d 265
    , 269 (La.1987).
    
    Therefore, it is irrelevant how the police decided to pick up those
    
    five bags.      Next, this assertion is based on information obtained
    
    after   trial    which   this   court    is   not   allowed   to   consider   as
    
    discussed above.         Thus, this assertion does not state a valid
    
    ineffective assistance claim.
    
         2. Kyles asserts that it was ineffective assistance for Regan
    
    not to have moved for a continuance to ascertain from residents
    
    around 2313 Desire St. (Pinky's residence) how many bags of garbage
    
    they put out on the day in question and whether they saw anyone
    
    else place a garbage bag in front of the house.                This argument,
    
    again, is based on defendant's post-trial hindsight which the court
    
    
    
         In the instant matter, Mr. Regan was retained counsel for
    Kyles. Mr. Regan has appeared before this court under similar
    circumstances, albeit never in a capital case, on numerous
    occasions. The court notes for the record that Mr. Regan has
    consistently conducted himself as an extremely careful and
    zealous defense lawyer.
         It is impossible for this court to place much credence in
    this "expert's" opinion.
    
                                            112
    will not consider as providing evidence of allegedly deficient
    
    trial conduct. Furthermore, from the evidence, it is apparent that
    
    all of the bags were the same and were "lined up" when picked up
    
    indicating that they probably came from Kyles' apartment.
    
         3. Petitioner argues that counsel erred in his failure to
    
    interview Steven Turner, who allegedly told Martina ("Pinky")
    
    Burnes that he saw Beanie fill a garbage bag and leave his house on
    
    North Dorgenois.   (See discussion, supra).    Again this claim goes
    
    back to the alleged "tip" from Beanie about the garbage of which
    
    counsel had no knowledge when his alleged failure to interview
    
    Turner would have had any relevance.     In addition, it would appear
    
    that counsel was unaware of Turner's alleged discussion with Pinky.
    
    As such, the allegation is based on hindsight which the court will
    
    not consider.   Furthermore, the picture in evidence of the five
    
    garbage bags belies this story in its entirety.
    
         4. Regan was also allegedly ineffective because he failed to
    
    investigate and interview Marrian Burnes who allegedly saw the
    
    murder weapon in Beanie's possession one or two weeks prior to the
    
    murder.   This information is so inconsequential in relation to the
    
    rest of the evidence that it cannot be said that the result of the
    
    proceeding would have been different had Regan known; therefore, no
    
    prejudice is demonstrated.
    
         5. Regan's failure to interview the eye-witnesses of the
    
    shooting was erroneous and prejudiced Kyles, the defendant claims.
    
    The Court finds no merit in this argument.       Regan had more than
    
    adequKMRGCMND():!A]jtunily    ho     cross-examine   three   of   the
    
    
                                       113
    eye-witnesses at the motion to suppress--when all were under oath.96
    
    His election not to further interview them or obtain statements was
    
    not unreasonable and appears to have been in the nature of a
    
    reasonable, tactical decision on the part of defense counsel that
    
    the court will not second guess.      In addition, Kyles has not
    
    presented how such witness interviews would have resulted in a
    
    different trial outcome.   The trial in question was fundamentally
    
    fair.
    
         6. Kyles claims that counsel should have demanded an in camera
    
    review of the homicide file.      This entire claim is based on
    
    hindsight and as such is not subject to review by the Court.
    
    Furthermore, considering that the Court has previously ruled that
    
    the failure to turn over this Brady material did not result in
    
    Kyles receiving an unfair trial, this claim is without merit.
    
         7. Kyles argues that counsel was "patently ineffective in
    
    allowing the state to hide such significant evidence" as the taped
    
    conversation.   As this court has stated, this "taped conversation"
    
    looked at in the light of all of the other evidence adduced at
    
    
         96
          Regan cross-examined Isaac Smallwood, Henry Williams and
    Robert Territo at a motion to suppress held on November 6, 1984,
    all of whom testified at trial. Only Darlene Cahill, the fourth
    trial eye-witness was not questioned and that is because she had
    not participated in the photographic line-up at issue therein.
         The Court notes that the identifications made by each of
    these persons was absolute. Much has been made over Smallwood
    having embellished his recounting of what he saw on the day of
    the shooting at trial. However, comparing his statement, his
    testimony at the hearing on the motion to suppress, and the
    testimony at trial, this court believes that at a minimum this
    individual was able to see the perpetrator's face and that the
    identification is valid. Smallwood's embellishment is not
    prejudicial error.
    
                                    114
    trial and at the post-conviction hearing, is not the "smoking gun,"
    
    as defense counsel insists on characterizing it. In addition, this
    
    is yet another "hindsight" call which the court will not consider.
    
         8. Counsel was ineffective because he did not advise two of
    
    the defense witnesses to go to the police or the district attorney
    
    with "information ... that Beanie was the murderer of Dolores Dye"
    
    which information counsel learned "at least two weeks after Curtis'
    
    arrest."    This assertion by Kyles overstates at best, or misstates
    
    at worst, what this court can glean from the record.
    
         The citations provided by counsel to support this claim do not
    
    deal with these two persons having informed Regan two weeks after
    
    Kyles' arrest that Beanie was the murderer of Dolores Dye.      The
    
    Regan testimony of February 20, 1989, at the Post-Conviction
    
    Hearing beginning at page 17 deals with Beanie's allegedly having
    
    murdered two other people. Kevin Black's entire testimony consists
    
    of his having seen Beanie in the Dye car immediately after the
    
    shooting.     Johnny Burnes most incriminating statement at trial
    
    about Beanie was that he saw Beanie placing something behind the
    
    stove at the now infamous Sunday night dinner.
    
         To begin the analysis, the criminal trial court found that
    
    Johnny Burnes testimony is totally without merit or worthy of
    
    consideration because of his demeanor in court and because he had
    
    been convicted of the murder of Beanie.   This court concurs in this
    
    finding.    Both Burnes' trial testimony and post-conviction hearing
    
    testimony are incredible.    It was not until this post-conviction
    
    hearing (which occurred after Beanie's demise) that Burnes thought
    
    
                                     115
    about retrieving from his memory the "fact" that Beanie told him
    
    that Beanie had killed Mrs. Dye.   Indeed, Sergeant Raymond Miller,
    
    who took Burnes' statement about Beanie's involvement with another
    
    (the Leidenheimer) murder, believed from Burnes' statement that
    
    Burnes himself was involved in that murder.       (Post Conviction
    
    Hearings, Raymond Miller, March 3, 1989, at 46-47).97
    
         As to Black's testimony, again the court cannot find that his
    
    being "discredited" by the fact that he did not go to the police
    
    had an effect on the fairness of the trial in light of the totality
    
    of the evidence adduced.   Petitioner has not proven any prejudice
    
    resulted from the alleged error of counsel.
    
         9. In petitioner's memorandum of facts and law, not in the
    
    petition itself, Kyles finally argues that Regan's failure to
    
    interview Beanie himself was error. However, this decision was one
    
    which was rationally made by a competent defense lawyer.    Beanie
    
    was considered by Regan to be the proverbial "loose cannon."
    
    Considering that Regan's entire defense hinged on pinning the
    
    murder on Beanie, it is difficult to comprehend how interviewing
    
    Beanie would have made any appreciable difference.   Surely, Kyles
    
    
         97
          Miller testified concerning why he held this belief as
    follows:
         It was the information that, ah, he [Johnny Burnes]
         knew the caliber of the weapon. He knew the location
         of the wound, and most importantly, he knew the fact
         that a television had been moved from one location to
         another inside the downstairs's living room of the
         residence. That particular information in particular
         was never released to anyone, because I failed to put
         it in the initial daily by an oversight. So that
         particular information was not known to any one other
         than someone who would have been there that night.
    
                                    116
    could not have expected a Perry Mason confession from Beanie had
    
    Regan interviewed him.        This "error" was not prejudicial.
    
         B. Ineffective Assistance During Trial
    
         1.   A   major   issue   raised    in   petitioner's   post-conviction
    
    motions heard before Judge Waldron, repeated here, is that it was
    
    ineffective of counsel not to call Beanie to the stand.           Regan has
    
    opined that he did not do so because he misunderstood Louisiana law
    
    on that issue at the time;      he believed he would have to prove both
    
    hostility and surprise in order to lead Beanie if he called him.
    
    (Post-Conviction Hearing, Regan Testimony, February 20, 1989, at
    
    23-24).
    
         Louisiana Revised Statute 15:277 provided at the time of
    
    Kyles' trial:
    
         A leading question is one which suggests to the witness
    
         the answer he is to deliver, and though framed in the
    
         alternative, is inadmissible when propounded to one's own
    
         witness, unless such witness be unwilling or hostile.
    
         Louisiana Revised Statute 15:487 also provided at that time:
    
         No one can impeach his own witness, unless he has been
    
         taken by surprise by the testimony of such witness or
    
         unless the witness shows hostility toward him, and, even
    
         then, the impeachment must be limited to evidence of
    
         prior contradictory statements.
    
    It was only after the Louisiana Supreme Court, in dicta, stated
    
    that "Wallace [Beanie] was clearly a witness hostile to defendant,
    
    and defense counsel was entitled to employ leading question and to
    
    
                                           117
    impeach the witness through any prior inconsistent statements.
    
    La.R.S. 15:277;      15:487" that Regan's decision was called into
    
    serious question.
    
         The   Louisiana   court's   statement   does    not    mean    that   the
    
    statutory requirements would not have to have been met by Regan.
    
    Had Regan put Beanie on the stand, he would not have been able to
    
    impeach him until Regan was either surprised by the testimony or
    
    Beanie demonstrated hostility.       State v. Nuccio, 
    454 So. 2d 93
    
    (La.1984); State v. Rogers, 
    324 So. 2d 404
     (La.1975).           At the time
    
    Regan was called upon to make the decision as to whether or not to
    
    call Beanie, Regan had no guarantees as to Beanie's demeanor or
    
    testimony.   He made a logical decision which this court feels was
    
    justified at the time.
    
         The possibility of the defense calling Beanie was actually
    
    considered by Regan and discussed with the prosecution.               At the
    
    post-conviction hearing, prosecutor Cliff Strider in responding to
    
    the question whether Regan indicated to him whether Strider thought
    
    he would or would not call Beanie as a witness testified:
    
         He was debating that point.     I remember that there was a
    
         discussion.     I told him that I would love to get Beanie
    
         under cross-examination, and he made a remark about how
    
         that he would be able to do that, and so we'd both have
    
         him     under     cross-examination.           There     was     a
    
         discussion--....      He made a remark about that Beanie
    
         would be hostile because he was going to be accusing him
    
         of the murder, and that he would be able to--I told him
    
    
                                      118
         that I didn't think Beanie would get hostile.                 I didn't
    
         think that Beanie would get upset.
    
    (Post-Conviction Hearing, Testimony of Strider, February 20, 1989,
    
    at 117.[)]
    
         Considering the possible damage that Beanie's testimony could
    
    have wrought     and   considering     that    much   of   the     "evidence"     of
    
    Beanie's     character    and    activities      presented        was   based     on
    
    questionable    hearsay,      this   court    believes     that    Regan   made    a
    
    tactical decision that was reasonable and well advised at the time
    
    that he decided not to place Beanie on the stand.                 This court must
    
         indulge a strong presumption that counsel's conduct falls
    
         within    the     wide    range   of     reasonable     professional
    
         assistance; that is the defendant must overcome the
    
         presumption that, under the circumstances, the challenged
    
         action "might be considered sound trial strategy."
    
    Strickland, 466 U.S. at 690, 104 S.Ct. at 2065.
    
         In addition, the essence of the state's case did not rely at
    
    all on Beanie; it was founded on the positive identification by
    
    four eye-witnesses who saw Curtis Lee Kyles at varying stages of
    
    the incident calmly placing a gun to the head of an unarmed woman,
    
    blowing her brains out (for absolutely no other reason than to rob
    
    her), and then driving away in her car.          The court cannot find that
    
    the decision reached would reasonably likely have been different
    
    had Regan cross-examined Beanie.
    
         2. Kyles alleges that counsel was ineffective because he
    
    failed to obtain the services of an eye-witness expert to prove
    
    
                                           119
    that the identifications were suspect.                 At page 94 of Regan's
    
    February 20, 1989, post-conviction hearing testimony, he states
    
    that he did not know of any case in the year 1984 in which an
    
    expert in eye-witness identification was used in the Criminal
    
    District Court for Orleans Parish.            In light of that testimony, it
    
    borders on frivolous to raise such a claim under the dictates of
    
    Strickland. Because it was not the practice of the legal community
    
    in 1984 to use these experts, and their use was, therefore, without
    
    precedent    at    that   time,    Regan     cannot   be   found    to    have   been
    
    ineffective by not doing that which had never before been done.
    
          3. Likewise, Kyles' argument that Regan should have impeached
    
    Smallwood, the eye-witness who embellished his story on the stand,
    
    with his prior statement is without merit.                 Regan did not know of
    
    it;   therefore, an ineffective assistance of counsel claim in this
    
    regard is without merit.          Furthermore, since the "Brady " evidence
    
    was found not to be material, its non-use could not present an
    
    ineffective assistance of counsel claim.
    
          4. Kyles makes the broad-brush allegation that counsel's
    
    failure     to    interview     all    of    the   eye-witnesses         constituted
    
    ineffective       assistance.         This    claim   fails    to    detail      with
    
    particularity what prejudicial impact that failure produced, and
    
    therefore Kyles does not raise a cognizable claim.
    
          5. Kyles claims as ineffective assistance Regan's failure to
    
    call Detective John Miller, the detective who met with Beanie, to
    
    the stand.       During the post-conviction hearing, Detective Miller
    
    was called to testify.          There was no testimony elicited from him
    
    
                                            120
    that would have in any way diminished the state's case against
    
    Curtis Lee Kyles.      Accordingly, no prejudice has been demonstrated
    
    by Kyles; this claim also fails.
    
          6. The next claim is based upon counsel's alleged failure to
    
    properly argue the State's objection to Ronald Gorman's testimony
    
    as   hearsay.    At    the   trial   Gorman      testified    that   Beanie    had
    
    attempted to sell Mrs. Dyes' car to Gorman.               Gorman also had been
    
    convicted "on a marijuana charge" and "armed robbery that they
    
    broke it down to purse snatching."            Trial Transcript at 238-39.
    
    Indeed, Gorman testified how different Beanie and Kyles appear.
    
    Trial Transcript at 244.98
    
          Kyles does not specifically outline exactly what testimony
    
    Gorman would have given.         He notes that "[h]owever, had trial
    
    counsel noted    that    a   statement     against    penal    interest   is    an
    
    exception to the hearsay rule, the statements made by Beanie to
    
    Ronald Gorman would have been admissible."                Petitioner gives no
    
    specifics, and on that basis the court rejects this contention.
    
          In   addition,    in   reviewing     the    trial    testimony   and     the
    
    post-conviction testimony with respect to Gorman, Gorman was a
    
    convicted felon whose testimony was and continues to be suspect.
    
    Therefore, the court cannot find that Kyles was prejudiced by
    
    Regan's "failure" in this regard.
    
          98
           Gorman was one of the individuals who went to the police
    after the first trial and gave a statement concerning Beanie and
    the Leidenheimer murder. In the statement, Gorman admitted that
    he had known of the Leidenheimer information for a number of
    months but had decided to tell the police only then because
    Beanie supposedly threatened to murder him if Gorman testified at
    trial.
    
                                         121
         7. Kyles raises a similar objection with regard to Johnny
    
    Burnes testimony and counsel's failure to raise an exception to the
    
    hearsay rule.       The trial court stated after the post-conviction
    
    hearing:
    
         This Court, having had the opportunity to view Mr. Burnes
    
         on the witness stand and to hear his testimony, has
    
         chosen to totally disregard everything that he has said.
    
         Purely by coincidence, this Court has presided over the
    
         trial of Mr. Burnes, wherein he was convicted of the
    
         killing of Joseph Wallace [Beanie].
    
    Judgment dated November 9, 1989, at 4.
    
         The trial court's finding of fact in this regard cannot be set
    
    aside unless it is clearly erroneous.           The court must give due
    
    regard   to   the   opportunity   of   the   trial   court   to   judge   the
    
    credibility of the witnesses.      Amedeo v. Zant, 
    486 U.S. 214
    , 223,
    
    
    108 S. Ct. 1771
    , 1777 (1986).       Having reviewed the entire record,
    
    this court without hesitation concurs with the trial court's
    
    determination concerning the credibility of Johnny Brown.
    
         Burnes still denies that he killed Beanie, and testified at
    
    Kyles' post-conviction hearing that the prosecutor, Mr. Strider,
    
    whispered to Burnes outside the courtroom, "He told me whatever
    
    they had to do to get me, they was going to get me, too."
    
    (Post-Conviction Hearing, Burnes' Testimony, March 1, 1989, at 54).
    
    Even at the trial, before Beanie's murder, Burnes' testimony is
    
    uneven and unbelievable.
    
    
    
    
                                       122
         Based on these findings, there can be no prejudice with regard
    
    to any testimony that Burnes was precluded from giving.
    
         8. Kyles opines that counsel failed in providing assistance
    
    when Regan did not object to the introduction of a picture and its
    
    blow-up which purportedly shows Kyles' car in the Schwegmann's
    
    parking lot at the time of the murder.    It is simply yet another ex
    
    post facto claim which has no merit as the basis for an ineffective
    
    assistance claim.   The gravamen of petitioner's argument is that
    
    the police record of the license plates supposedly demonstrates
    
    that Kyles' car was not in the parking lot at 9:15 p.m., the night
    
    of the murder.
    
         As noted earlier, at the post-conviction evidentiary hearing
    
    it was established that the list did not contain the license plate
    
    numbers of every car in the lot.      Furthermore, even if this list
    
    were conclusive, Regan did not even know of the list at the
    
    relevant time.
    
         9. Petitioner continues to claim ineffective assistance by
    
    arguing that counsel's failure to object to Detective Dillman
    
    talking about two other witnesses "probably persuaded the jury that
    
    there were more witnesses who could identify the defendant."
    
    (Trial testimony at 88).   This claim is totally unsupported by the
    
    record.     The two other witnesses are Willie Jones and Edward
    
    Williams.    These two persons participated in the photographic
    
    line-up, but were unable to make a positive identification, only a
    
    tentative one, as specifically stated by Dillman at trial. He also
    
    testified that they did not make a negative identification, that is
    
    
                                    123
    identify someone else.       Furthermore, this "failure" could not be
    
    deemed to have resulted in Kyles' receiving a fundamentally unfair
    
    trial when four eye-witnesses testified unequivocally that Kyles
    
    was the perpetrator of the crime.
    
         10. Kyles argues that Regan was ineffectual when he failed to
    
    object during the sentencing phase to a comparison of Kyles' life
    
    while incarcerated to the Dye's family life subsequent to the
    
    murder    of   Mrs.   Dye.     This    "failure"    does    not   constitute
    
    constitutional grounds to vacate the sentence.             Under the Supreme
    
    Court's ruling in Payne v. Tennessee, --- U.S. ----, 
    111 S. Ct. 2597
    , 2606-08 (1991), it is not unconstitutional to introduce at
    
    the sentencing stage information concerning the impact on the
    
    victim's family because of the victim's death.         "We are now of the
    
    view that a State may properly conclude that for the jury to assess
    
    meaningfully the defendant's moral culpability and blameworthiness,
    
    it should have before it at the sentencing phase evidence of the
    
    specific harm cause by the defendant."        Id.
    
         11. Kyles' last contention is that counsel was ineffective for
    
    his "failure to investigate the possibility that Kyles' has organic
    
    brain damage or mental illness."        First, counsel has not presented
    
    evidence that Kyles' suffering from:
    
         considerable inter- and intra-test scatter. Deficiencies
    
         appear in areas of perceiving and mobilizing information
    
         in    the   environment,    academic     knowledge,       abstract
    
         reasoning and short-term memory
    
    
    
    
                                          124
    (Petition at 47) would affect his capacity to stand trial or to be
    
    sentenced as he was.      Second, there is no evidence of any facts or
    
    triggering     events   which     would      have    alerted    Regan    to    the
    
    desirability of ordering such tests.           Counsel testified that Kyles
    
    was lucid and perfectly capable of understanding everything that
    
    went on at trial and assisting counsel at that time.                     "He was
    
    certainly sane and capable of assisting me."                   (Post-Conviction
    
    Hearing, Testimony of Regan, February 20, 1989, at 61).                 Regan was
    
    privately retained counsel, working within a budget.                  Id. at 62.
    
    Taking all of this into consideration, counsel's not ordering those
    
    kinds of tests was reasonable under prevailing professional norms
    
    at the time.
    
         C. Ineffective Assistance Following Trial
    
         1. Kyles alleges that had Regan "kept in contact with Curtis'
    
    family during the appeal of the conviction and death sentence, he
    
    would have learned that Beanie admitted to Martina Burnes and
    
    Johnny Burnes that Beanie killed Dolores Dye."                   The court has
    
    already expressed its findings with respect to Johnny Burnes'
    
    testimony.      The   court    finds    Martina     ("Pinky")    Burnes'      "new"
    
    information     equally       incredible.           She   testified      at    the
    
    post-conviction hearing, responding specifically to the court's
    
    question,99 that Beanie told her before Curtis was convicted that
    
    Beanie had shot Mrs. Dye.              (Post Conviction Hearing, Martina
    
    
         99
          As stated previously, Regan did not call her at trial
    because he was uncomfortable with her testimony and attitude even
    though the defense's version hinged on the theory that Beanie
    framed Kyles in order to get Pinky.
    
                                           125
    Burnes' Testimony, April 7, 1989, at 17-18).               Certainly, it belies
    
    belief that had Pinky had this information at the time of trial
    
    that she would not have been forth-coming with it.                      Inherent in
    
    this claim also is the idea that defense counsel should continue
    
    "post-trial working" of evidence, a concept which, at the very
    
    least is novel, if not absurd.              Surely, the burden of producing
    
    favorable or changed post-trial circumstances should rest with the
    
    defendant's family, not with his lawyers.              They are advocates, not
    
    companions or sitters. This claim is without merit and warrants no
    
    more discussion.
    
          2.    Kyles   final   assignment       of   error    in    relation      to   the
    
    ineffectiveness of counsel is that he "could have also called
    
    Detective Ray Miller to the stand during a hearing on a motion for
    
    new trial on the basis of newly discovered evidence"--that being
    
    Beanie's confession         about   being    present      at    the   scene    of   the
    
    Leidenheimer murder.        What this evidence has to do concerning new
    
    evidence in relation to Kyles' murdering Mrs. Dye is beyond this
    
    court's independent comprehension and is neither explained nor
    
    amplified by counsel.          Beanie never took the stand.                   Beanie's
    
    testimony and good character were not an issue.                  Beanie supplied a
    
    name.      That is virtually all he did.
    
          In summary, with respect to all of the ineffective assistance
    
    of   counsel    claims,     Kyles   has     not   demonstrated        that     he   was
    
    prejudiced by any of these alleged "errors," nor did Regan's
    
    defense fall below the standard required.                 Kyles received a fair
    
    trial;      a jury found him guilty beyond a reasonable doubt, did so
    
    
                                           126
    on the basis of facts properly presented to it, and had ample
    
    evidence presented to it to do so.
    
    IV. Other Errors in Trial Court
    
         In addition to the foregoing, petitioner raised seventeen
    
    other "errors" which the trial court allegedly committed.
    
         A. Kyles claims that the trial court erred when it did not
    
    appoint, without being asked, another attorney for the sentencing
    
    phase of the trial.   To begin, Regan was not appointed counsel, so
    
    it is unclear why the trial court should interject itself into the
    
    business of retained counsel in that manner.       Furthermore, as
    
    support for this proposition, Kyles asks the Court to look to State
    
    v. Williams, 
    480 So. 2d 721
    , 728 n. 14 (La.1985), a case decided
    
    after this trial in which the court noted the possibility of a
    
    court appointing separate counsel for the sentencing phase of the
    
    trial.   Neither statutory law nor the Louisiana Supreme Court
    
    mandate it.   Furthermore, petitioner simply states in a conclusory
    
    way that this non-appointment violated Kyles' Sixth, Eighth and
    
    Fourteenth Amendment rights but does not specify how.       Without
    
    specificity, the Court cannot address this allegation.
    
         B. Kyles claims his Sixth, Eighth and Fourteenth Amendment
    
    rights were violated when his garbage was seized as the result of
    
    information given by an unreliable source.      The petitioner was
    
    given a full and fair hearing based on a motion to suppress.    As
    
    discussed earlier, petitioner had no reasonable expectation of
    
    privacy in the garbage;    therefore, no constitutional error was
    
    
    
    
                                      127
    committed when its contents, those being the victim's purse and
    
    belongings, were introduced at trial.             Furthermore,
    
         where the State has provided an opportunity for full and
    
         fair   litigation     of    a    Fourth     Amendment    claim,    the
    
         Constitution does not require that a state prisoner be
    
         granted federal habeas corpus relief on the ground that
    
         evidence   obtained    in       an    unconstitutional    search    or
    
         seizure was introduced at his trial.
    
    Stone v. Powell, 
    428 U.S. 465
    , 482, 
    96 S. Ct. 3037
    , 3046 (1976).
    
    This claim is without merit.
    
         C. Kyles complains that the trial court clearly erred in
    
    precluding answers from Detective Miller regarding his knowledge
    
    about Beanie's offering the victim's car for sale and stating
    
    whether he had changed the license plate.            Counsel at trial did not
    
    object to the trial court's evidentiary ruling, nor did counsel
    
    offer the justification that the testimony was admissible not for
    
    the truth of the statement, but for the proposition that the
    
    statement had been made.
    
         This court must remember its role in reviewing the evidentiary
    
    rulings of state convicting courts.             An evidentiary error in state
    
    criminal trial justifies habeas corpus relief only if the error is
    
    such that it rendered the petitioner's trial fundamentally unfair.
    
    Bailey v. Procunier, 
    744 F.2d 1166
    , 1168 (5th Cir.1984). An unfair
    
    trial is one that has been largely robbed of the dignity due a
    
    rational process.   Menzies v. Procunier, 
    743 F.2d 281
    , 288 (5th
    
    
    
    
                                              128
    Cir.1984).    A state defendant has no constitutional right to an
    
    errorless trial.   Bailey, 744 F.2d at 1168.
    
         In Kyles' case in chief, the allegation that Beanie offered
    
    the car for sale after the murder was raised by Ronald Gorman
    
    (Trial Transcript at 234), and the allegation that Beanie changed
    
    the license plates was elicited on direct examination of Johnny
    
    Burnes.   (Trial Transcript at 260).   Thus, the jury was presented
    
    with these theories.     Looking at the totality of the evidence
    
    presented and the manner it was introduced, the evidentiary rulings
    
    did not result in a fundamentally unfair trial.
    
         D. Kyles opines that the failure of the trial court to voir
    
    dire the prospective jurors individually and privately tainted the
    
    venire when prospective jurors Gros and Miller stated that they
    
    believed the defendant was guilty.      First, petitioner does not
    
    indicate that counsel ever made such a request, nor can this court
    
    locate such a request in the approximately 200-page voir dire
    
    transcript.   Second, the citation of pages 92 and 93 in relation to
    
    "Gros'" testimony is not correct since the testimony of neither a
    
    Mr. nor Ms. Gros appears at those pages.    Third, a review of the
    
    voir dire of Mr. Miller provides the clear view that Mr. Miller
    
    agreed that Kyles was innocent until proven guilty. Finally, there
    
    is no constitutional guarantee of individual voir dire.   See Wingo
    
    v. Blackburn, 
    783 F.2d 1046
    , 1051-52 (5th Cir.1986); Salemme v.
    
    Ristaino, 
    587 F.2d 81
    , 88 (1st Cir.1978).
    
         E. Kyles claims that his right to a fair trial and sentence
    
    were violated "by making reference to Kyles' alleged infidelity to
    
    
                                    129
    his common law wife." Petitioner gives no specific reference where
    
    the "cheap shot" occurred; however, Kyles himself testified that he
    
    had another girlfriend. This court finds it impossible to say that
    
    Kyles was denied a fundamentally fair trial because of any such
    
    reference when it was a fact testified to by the petitioner
    
    himself.    (Trial Transcript at 331).
    
           F. Petitioner claims he did not receive a fair trial when the
    
    prosecutor argued that none of the jurors would feel safe shopping
    
    at Schwegmann's.      Trial counsel made an objection and it was
    
    sustained;     however    counsel   failed   to   ask   that   the   jury   be
    
    admonished to disregard the statement.
    
           The trial court instructed the jury at the end of the guilt
    
    phase that:
    
           the opening statement of the District Attorney, as well
    
           as the opening statement of the defense attorney, as well
    
           as all of their closing arguments, as well as all of the
    
           questions that they have asked during this trial, as well
    
           as all of their comments during this trial, are not in
    
           any way to be considered by you as evidence in this case.
    
    Such   a   prophylactic   instruction     cures   the   alleged   violation.
    
    Furthermore, the failure to admonish given the circumstances of the
    
    trial still would not result in a fundamentally unfair trial.
    
           G. Kyles next raises the identical type of objection but in
    
    regard to the sentencing phase concerning a reference to Kyles'
    
    being able to watch cable television if sentenced to life at
    
    Angola.    This court has not been able to find in the record that a
    
    
                                        130
    similar prophylactic instruction was given; however, the Louisiana
    
    Supreme Court observed that a review of the closing argument in its
    
    entirety led it to conclude that the prosecutor's improper remarks
    
    did not render the jury's sentencing recommendation unreliable.
    
    State v. Kyles, 
    513 So. 2d 265
    , 275 (La.1987).                  This court concurs
    
    with the Louisiana high court's findings and will not disturb them.
    
          H. Kyles claims that because the "sentencing paragraph of the
    
    relevant   article      states    that      the     jury's          decision    is     a
    
    'recommendation' when in fact it is a mandatory sentence," the
    
    statute is unconstitutional, and the jury was mislead concerning
    
    the   finality   of    their   decision.          This    argument       belies      the
    
    instructions which Judge Waldron gave.             In the case at bar, it is
    
    clear that the jury was apprised of the fact that its finding that
    
    Kyles should be sentenced to death would result in the imposition
    
    of that penalty.      One of the statements made to that end (and the
    
    instructions are replete with similar statements) is as follows:
    
          Only if you find beyond a reasonable doubt that the
    
          aggravating     circumstance    outweighs          any   one     or    more
    
          mitigating circumstances and you are convinced beyond a
    
          reasonable      doubt    that   the    sentence          of    death     is
    
          appropriate, may you impose that sentence.                     (emphasis
    
          added).
    
    Nowhere in the instructions, is the jury given the impression that
    
    their verdict would simply be a "recommendation."                     Therefore, no
    
    constitutional right was violated.
    
    
    
    
                                          131
         I. In the sentencing phase, a juror asked the trial court
    
    whether a life sentence without benefit of parole, probation or
    
    suspension of sentence was "exactly carried out."             Kyles argues
    
    that because the judge simply reiterated what the standard of proof
    
    for the finding of a sentence of death rather than directly
    
    answering the question "was misleading and deprived Curtis of fair
    
    sentencing hearing, violating his rights...."
    
         Under Louisiana jurisprudence, the trial court responded in a
    
    proper manner.    State v. Copeland, 
    530 So. 2d 526
    , 538 (La.1988),
    
    citing State v. Lindsey, 
    404 So. 2d 466
    , 487 (La.1981), after
    
    remand, 
    428 So. 2d 420
     (La.1983).       "A discussion of future remedial
    
    measures increases the potential for arbitrary decision making by
    
    the jury and is irrelevant to the jury's duty.              Thus, there is
    
    almost a blanket prohibition of these matters."
    
         The trial court's response was not prejudicial and did not
    
    result in a fundamentally unfair trial. Indeed, if the trial court
    
    had done otherwise, it could well have committed error.            The trial
    
    court adequately informed the jury of its option to sentence the
    
    petitioner to either life imprisonment or death. Evans v. Thigpen,
    
    
    809 F.2d 239
    , 243 (5th Cir.1987).          As such, the court's response
    
    was not prejudicial.       This claim is devoid of substance.
    
         J.   Kyles   claims    his   constitutional   rights   were   violated
    
    because the first degree murder statutory scheme does not allow for
    
    a separate jury to be chosen for each phase of the trial based on
    
    his contention that such a scheme "would allow jurors who are
    
    opposed to the death penalty to serve during the guilt/innocence
    
    
                                         132
    phase, if otherwise qualified."             The court finds neither statutory
    
    sanction nor constitutional justification for such a proceeding.
    
    In    addition,     other      than     offering       an    unsupported,        if    not
    
    interesting, theory of his perceptions of enhanced jurisprudential
    
    practice, petitioner does not demonstrate how the absence of such
    
    a    "two   jury"   trial      prejudiced      him.        The    jury   selection     was
    
    fundamentally fair and the fact that those who do not believe in
    
    the death penalty were excluded from the guilt phase of the trial
    
    raises an issue that is wholly speculative in its nature and does
    
    not meet constitutional proportions.                  Furthermore, this issue was
    
    not raised in a petitioner's initial appeal and is arguably waived.
    
           K. Kyles claims that he was deprived of a fair sentencing
    
    hearing because the prosecutor appealed in numerous ways to the
    
    passions of the jury.            The Louisiana Supreme Court examined the
    
    record      of    the    sentencing      phase        to    determine      if    it    was
    
    constitutionally excessive.
    
           In making this determination, the court considers whether
    
           the sentence was imposed under the influence of passion,
    
           prejudice or any other arbitrary factor; whether the
    
           evidence supports at least one statutory aggravating
    
           circumstance;           and      whether        the        sentence       is
    
           disproportionate to the penalty imposed in similar cases,
    
           considering both the offender and the offense.
    
    Kyles, 513 So.2d at 273.             While the state supreme court recognized
    
    that the closing was surely undesirable, if not improper, in a
    
    number      of   ways,   the    court    was    unable       to   conclude      that   the
    
    
                                              133
    prosecutor's      improper    remarks    rendered     the     jury's    sentencing
    
    recommendation unreliable.        Kyles, 513 So.2d at 275.
    
         This    court   having    reviewed       the   record    concurs    with   the
    
    Louisiana Supreme Court.       Some of the objectionable comments refer
    
    to what have become known as "victim impact statements."                  In Payne
    
    v. Tennessee, --- U.S. ----, 
    111 S. Ct. 2597
    , 2609 (1991), the
    
    United States Supreme Court held that the Eighth Amendment does not
    
    establish a per se bar to the introduction of victim impact
    
    evidence where the State chose to permit the admission of victim
    
    impact evidence and prosecutorial argument.                  This court believes
    
    that the statements made taken in the context of the whole did not
    
    render the verdict unreliable.
    
         The jury found an aggravating circumstance which is sufficient
    
    under the Louisiana scheme to sentence Kyles to death.                   Based on
    
    the record in its entirety, the evidence was overwhelming of Kyles'
    
    guilt.      There was little cause for doubt based on the four
    
    eyewitnesses' testimony that this defendant needlessly and with
    
    total disregard for the victim literally blew her brains out.
    
    There was little, if any, mitigating evidence.                     Even if the
    
    argument was inappropriate, it did not make the sentencing hearing
    
    unfair.     See Kirkpatrick v. Blackburn, 
    777 F.2d 272
    , 283-84 (5th
    
    Cir.1985).
    
         L.   Kyles    contends    that     the   prosecution      argued    that   the
    
    alternative to the death sentence was only "life imprisonment" not
    
    mentioning that it would be without benefit of parole, probation or
    
    suspension of sentence.        This claim disregards the very explicit
    
    
                                            134
    instructions of the trial judge at the sentencing stage, disregards
    
    the   very    nature    of   closing    arguments,        and   would   cast   the
    
    prosecution in the role of an apologist, which is neither his duty
    
    nor his purpose.       The claim has no merit.
    
          M.     The   petitioner   argues       that   the    death   penalty     was
    
    arbitrarily and capriciously imposed on him because the mitigating
    
    factor of "no significant prior criminal record" was present and
    
    because "no aggravating circumstances existed other than that
    
    required to be proved in order to convict the petitioner of the a
    
    (sic) murder."         Surely, the state proved that which the law
    
    required it to prove;        that the jury elected to forego Kyles' wish
    
    for more merciful consideration raises no federal constitutional
    
    issue.     In Wingo v. Blackburn, 
    783 F.2d 1046
    , 1051 (5th Cir.1986),
    
    the United States Court of Appeals for the Fifth Circuit stated:
    
          We fail to see why aggravating circumstances narrow the
    
          sentencing       discretion   any      less   by     being   made   a
    
          constituent element of the crime. The State of Louisiana
    
          is entitled to authorize capital punishment for persons
    
          guilty of these aggravated acts where the jury does not
    
          find that mitigating circumstances justify less than the
    
          death penalty.
    
    See Lowenfield v. Phelps, 
    817 F.2d 285
    , 289 (5th Cir.1987), aff'd,
    
    
    484 U.S. 231
    , 
    108 S. Ct. 546
     (1988).           Petitioner raises yet another
    
    baseless claim.
    
          N. Kyles claims that his constitutional rights were violated
    
    when two defense witnesses, Kevin Black and Johnny Burnes, were
    
    
                                           135
    threatened by the prosecutor with being charged with accessory
    
    after the fact to first degree murder.          Kyles contends that after
    
    the trial court informed them of this problem and instructed them
    
    on their Fifth Amendment right against self-incrimination, the
    
    demeanor    of   the   two   witness     changed    radically    and   their
    
    effectiveness was diminished.
    
         This court rejects this argument as did the Louisiana Supreme
    
    Court in Kyles, 513 So.2d at 271.       As stated before, Johnny Burnes'
    
    testimony is simply not credible under any circumstances, without
    
    any reference to his demeanor.         Kevin Black testified that he saw
    
    Beanie in the Dye car between 3:15 and 3:30 p.m. on the day of the
    
    murder and that Beanie had his hair fixed in braids or plaits at
    
    the time.    (Trial Testimony at 208-09).       In relation to all of the
    
    other evidence and testimony adduced, these witnesses' demeanor
    
    would not have caused the outcome of this trial to be suspect.             In
    
    addition the Louisiana Supreme Court found that if Beanie had
    
    provided the prosecutor "information ... indicating that Burns and
    
    Black facilitated defendant's attempts to avoid apprehension and
    
    destroy    evidence,   the   prosecutor   had   a   legitimate   basis   for
    
    considering prosecution under the accessory statute, La.R.S. 14:25
    
    or the obstruction of justice statute, La.R.S. 14:130.1."              Kyles,
    
    513 So.2d at 272 n. 6.
    
         At the post-conviction hearing, Prosecutor Strider outlined
    
    the state's theory of the case as follows:
    
         Because what happened was that Curtis Kyles shot that
    
         lady, he took her car to ... Kevin Black's apartment, and
    
    
                                       136
           there is a place where you can park an automobile that
    
           you can't see it--behind Mr. Black's apartment, you can't
    
           see it unless you're standing right there.           He then got,
    
           I believe Mr. Black, to drive him over to his house.
    
           They goofed off there for a little bit.          Then they got
    
           Johnny Burnes to take Black, Burnes, Kyles and Beanie
    
           back to the parking lot where the car was, and Burnes
    
           went in and picked up the car, Kyles' car.       And Black and
    
           Kyles and Beanie waited ... in the other parking lot
    
           while Johnny went over and picked up the car and drove it
    
           to Black's apartment complex, where they swapped the
    
           groceries from one car to the other car.
    
    (Post-Conviction Hearings, Strider's Testimony, February 20, 1989,
    
    at 128-29).     There was reason for Strider to ask for the court's
    
    intervention.    This court cannot find constitutional error in the
    
    actions of the trial court.
    
           O. Kyles claims that his rights were violated because the pro
    
    bono attorney appointed by the Louisiana Supreme Court has no
    
    previous experience in death penalty post-conviction relief cases.
    
    The claim is without merit considering that Gerard A. Rault, Jr.,
    
    who is a professor of criminal law at Loyola Law School in New
    
    Orleans, Louisiana, is listed as "of counsel" on the pleadings and
    
    participated in the post-conviction hearings.          Kyles has been well
    
    represented; he received a fair trial for the tragic murder of Mrs.
    
    Dye.     He   asserts   his   innocence   in   the   face    of   overwhelming
    
    
    
    
                                        137
    evidence.     No attorney, no matter such attorney's brilliance and
    
    experience, can change the facts of a case.
    
         P. Kyles claims that his sentence of death is "invidiously
    
    discriminatory" because of Louisiana's prosecuting authorities,
    
    court, juries and governors' pattern and practice of discriminating
    
    on the basis of race, gender and poverty in the administration of
    
    capital     punishment.        Kyles   has     offered      no   proof   that   a
    
    constitutionally significant element of racial or economic bias
    
    infects the Louisiana scheme.           McCleskey v. Kemp, 
    481 U.S. 279
    ,
    
    313, 
    107 S. Ct. 1756
    , 1778, reh'g denied, 
    482 U.S. 920
    , 
    107 S. Ct. 3199
     (1987).     However, even assuming that such bias is present,
    
    Kyles   has   offered     no   proof    that       the   Louisiana   legislature
    
    maintained a death penalty because of an anticipated racially or
    
    economically discriminatory effect.            Id., 481 U.S. at 297-98, 107
    
    S.Ct. at 1769; Brogdon v. Blackburn, 
    790 F.2d 1164
    , 1170 (5th
    
    Cir.), reh'g denied, 
    793 F.2d 1287
     (5th Cir.1986), cert. denied,
    
    
    481 U.S. 1042
    , 
    107 S. Ct. 1985
     (1987).              Accordingly, this claim is
    
    devoid of substance.
    
         R. Kyles claims that the cumulative effect of all these
    
    alleged "errors" resulted in the end effect "which is clearly
    
    harmful and which jointly and cumulatively deprives Curtis of his
    
    constitutional rights...."        First, this court has found that none
    
    of petitioner's claims has merit;            therefore, there is no error to
    
    accumulate.      "Zero    times   twenty      is    still   zero."    Mullen    v.
    
    Blackburn, 
    808 F.2d 1143
    , 1147 (5th Cir.1987).
    
    
    
    
                                           138
           However, the Fifth Circuit has recognized cumulative error
    
    analysis in a habeas case.            Derden v. McNeel, 
    938 F.2d 605
    , 609
    
    (5th Cir.1991).      The circuit has instructed:
    
           The sole dilemma for the reviewing court is whether the
    
           trial taken as a whole is fundamentally unfair.               When a
    
           trial is fundamentally unfair, "there is a reasonable
    
           probability the verdict might have been different had the
    
           trial been properly conducted."
    
    Id.    (citations omitted).
    
           This court is convinced that even if one considered all of the
    
    "errors" cumulatively, the jury's verdict would have been the same.
    
    For    the   sake    of   argument,     consider    that    Isaac    Smallwood's
    
    eyewitness    testimony     had   been    impeached,       there    remain     three
    
    disinterested eye-witnesses who identified Kyles--regardless of
    
    hair-style--as the man they saw kill Mrs. Dye or drive away in her
    
    car.    These witnesses were given the opportunity (as was the jury
    
    and the trial court) to physically compare Curtis Kyles and Beanie.
    
    If there had been a reasonable doubt as to whether Beanie and Kyles
    
    could have been confused with one another, the verdict undoubtedly
    
    would have been different.              As noted before, even Kyles' own
    
    witness stated that the two individuals' builds are so different
    
    that one could not confuse the two.
    
           The   court    examined    all    of   the   pictures       used   in     the
    
    photographic line-up and compared Kyles' and Beanie's pictures; it
    
    finds that they did not resemble one another.                 Furthermore, the
    
    argument concerning whether the attacker had plaits, braids, a
    
    
                                            139
    Jheri      curl,   or   a    bush   is     ludicrous.          The    photographic
    
    identifications were made using a picture of Kyles with a bush
    
    haircut.      It was his face these witnesses recognized;                        these
    
    witnesses had been close enough to see and remember his face.
    
         The allegedly cumulative effect of the claimed "non-errors"
    
    cannot change the clearly untainted evidence that was introduced.
    
    That evidence alone leads clearly and inevitably to the conclusion
    
    that Kyles killed Mrs. Dye in cold blood, in the course of an armed
    
    robbery.     No amount of irrelevant technicalities can change that
    
    result.
    
         Kyles got a fair trial--not simply a fundamentally fair trial,
    
    but a clearly fair trial.
    
    V. Error in the Supreme Court
    
         Petitioner argues that the Louisiana Supreme Court erroneously
    
    concluded     that   Beanie   testified        at   trial    which    he   did   not.
    
    Petitioner has not demonstrated that the court's error prejudiced
    
    him, and on review of the entire trial record and post-conviction
    
    hearing,     the   court    finds   that       Kyles   has   received      treatment
    
    throughout     his   trial    and   post-conviction          relief   that   passes
    
    constitutional muster.100
    
    VI. Error in the Evidentiary Hearing
    
    
    
         100
           The court would note, in passing, that it understands how
    such an error could occur. The record in this case is confusing,
    at best, and possibly misleading, at worst, even with careful
    study. While briefing was generally voluminous, it often
    afforded little help in unraveling, and was often the source of
    obfuscation, as to the procedural and factual background of
    Kyles' trial.
    
                                             140
         Kyles'   final   argument   is     that    his   right   to    a   complete
    
    evidentiary hearing was "undermined when the trial court refused to
    
    permit Curtis, who was found to be impecunious, funds with which to
    
    hire experts and investigate by means of civil discovery."                 Kyles
    
    presents neither statutory authority nor constitutional mandate for
    
    such hiring of experts.       But of equal importance, he offers no
    
    reason why in this instance the trial court should have provided
    
    such funds:   Kyles presents no indication of what kind of experts
    
    he believed would have been helpful; the kind or nature of the
    
    evidence such experts would have produced; or what effect that
    
    "expert" evidence would have.101            Furthermore, there was expert
    
    testimony by Mr. Dalton concerning the effectiveness of counsel
    
    claims.     Ms.   Hillary   Murphy,    who     technically    may   not    be   an
    
    "expert,"   nevertheless     presented       evidence   in    regard      to    the
    
    identification of Kyles and Beanie.          The fact of the matter is that
    
    the evidence was overwhelming; the court does not believe that any
    
    "expert" testimony could dissuade the court of its belief in the
    
    fairness of this trial or the propriety of the results reached by
    
    the jury.
    
                                   Conclusion
    
         Curtis Lee Kyles stands convicted of a senseless and brutal
    
    murder of an elderly woman committed during an armed robbery.                   He
    
    
         101
           If indeed Kyles is again raising the argument that an
    eye-witness expert should have been hired, the court reiterates
    that such practices were not the norm at the time of Kyles' trial
    and the failure to fund the hiring of an expert does not rise to
    the level of a constitutional deprivation of Kyles' rights in
    this instance.
    
                                          141
    has been sentenced to death after due deliberation by a fair and
    
    impartial jury. This court in reviewing the entire record believes
    
    that he received a fundamentally fair trial and that the verdicts
    
    rendered at both the guilt phase and the sentencing phase of this
    
    trial are not suspect. Kyles has been afforded justice concomitant
    
    with that which is required under the United State Constitution,
    
    and is therefore not entitled to the relief of the Great Writ.
    
    Accordingly,
    
         IT IS ORDERED Curtis Lee Kyles' Petition for Writ of Habeas
    
    Corpus is DENIED.
    
         The stay of execution will be lifted by separate order.
    
    
    
                               APPENDIX B
    
    
    
    
                            Curtis Lee KYLES
    
    
    
                                 versus
    
    
    
           John WHITLEY, Warden Louisiana State Penitentiary,
    
                           Angola, Louisiana.
    
    
    
                          Civ. A. No. 90-4301.
    
              United States District Court, E.D. Louisiana.
    
                             June 1, 1992.
    
    
    
    
                                   142
    ARCENEAUX, District Judge.
    
                                  ORDER AND REASONS
    
           A motion and memorandum in support of petitioner's relief from
    
    judgment pursuant to Fed.R.Civ.P. 60(b)(2) and (6) has been filed
    
    by petitioner Curtis Lee Kyles. Having reviewed the memorandum and
    
    affidavit of Darlene Kersh (who was known at the time of Kyles'
    
    trial as Darlene Cahill), the court finds that petitioner's motion
    
    to be meritless.
    
           Ms. Kersh was one of four eye-witnesses who made a positive
    
    identification of Kyles at trial and was the only witness who had
    
    not identified Kyles in a photographic line-up.                      Ms. Kersh now
    
    avers that     she    never    actually     saw     Kyles'    face   and    testified
    
    untruthfully     at   the     behest   of     the    police    and   the     district
    
    attorney's     office.        Petitioner      claims    that    this    information
    
    "undermines the entire premise of this Honorable court's conclusion
    
    that    Mr.   Kyles   received    a    fair    trial    based    upon      eyewitness
    
    testimony."
    
           This court entered judgment on petitioner's motion on March
    
    30, 1992, and petitioner filed his notice of appeal on April 2,
    
    1992.    He now moves the court for relief based on the affidavit of
    
    Darlene Kersh.
    
                                  Standard of Review
    
           Rule 60(b)(2) and (6) provide:
    
           On motion and upon such terms as are just, the court may
           relieve a party ... from a judgment, order, or proceeding
           for the following reasons: (2) newly discovered evidence
           which by due diligence could not have been discovered in
           time to move for a new trial under Rule 59(b)[; . . .]
    
    
                                            143
           and (6) any other reason justifying relief from the
           operation of the judgment.
    
           In this instance, with the appeal pending, this court does
    
    have jurisdiction to consider the motion and deny it on the merits
    
    without obtaining leave of the court of appeals. The United States
    
    Court of Appeals for the Fifth Circuit has held that:
    
           When a Rule 60(b) motion is filed while an appeal is
           pending, this circuit, along with other circuits and the
           commentators, has expressly recognized the power of the
           district court to consider on the merits and deny a 60(b)
           motion filed after a notice of appeals, because the
           district court's action is in furtherance of the appeal.
    
    Willie v. Continental Oil Co., 
    746 F.2d 1041
    , 1046 (5th Cir. 1984),
    
    citing Lairsey v. Advance Abrasive Co., 
    542 F.2d 928
     (5th Cir.
    
    1955).
    
           The court finds that this new claim constitutes an abuse of
    
    writ    which    precludes     the    court    from    reviewing     this    claim.
    
    Petitioner      has   failed   to    provide   the    court   with   an    adequate
    
    demonstration that he exercised due diligence to discover the
    
    evidence which he presents to this court as "new."                        While the
    
    affiant Kersh may not have had a telephone number listed as Darlene
    
    Cahill, there are other avenues using public records by which
    
    petitioner could have located this witness prior to his filing his
    
    first habeas petition.         The petitioner has failed to show that he
    
    was impeded by some objective factor external to the defense such
    
    as governmental interference or the reasonable unavailability of
    
    the factual basis for the claim which prevented him from raising
    
    this claim.      McClesky v. Zant, 
    111 S. Ct. 1454
    , 1473 (1991).
    
    
    
    
                                            144
         Furthermore, even if the Kersh affidavit were true, such
    
    evidence would not have affected the jury verdict in this case.
    
    Her testimony was cumulative and in the context of the entire trial
    
    transcript, rather inconsequential.      Given the totality of the
    
    evidence and the remaining three eye-witnesses who chose Kyles out
    
    of a photographic line-up and who were cross-examined by Kyles'
    
    counsel during a motion to suppress, the court is not persuaded
    
    that Kyles did not receive a fundamentally fair trial.     While Ms.
    
    Kersh's affidavit is disconcerting in that perjured testimony given
    
    at the urging of the government in such a prosecution must not be
    
    countenanced, Ms. Kersh's testimony was of little consequence in
    
    relation to the other eye-witnesses and the evidence found in
    
    Kyles' girlfriend's apartment.
    
         Finally, under section 2254(b), a prisoner must first exhaust
    
    his state remedies prior to raising that claim in federal court.
    
    Rose v. Lundy, 
    102 S. Ct. 1198
     (1982).     This new "evidence" really
    
    is a new and independent basis for relief which has never been
    
    presented to the state court.    As such, this court cannot grant the
    
    relief requested.   Accordingly,
    
         IT IS ORDERED that plaintiff's Rule 60 motion is DENIED.
    
    
    
    
                                       145