The opinion of the court was delivered by: Sim Lake United States District Judge
MEMORANDUM OPINION AND ORDER
On May 30, 2007, petitioner, Delbert Lee Burkett, filed a Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No. 1). Pending before the court are Respondent Nathaniel Quarterman's Motion for Summary Judgment with Brief in Support (Docket Entry No. 10) and Petitioner's Reply to Respondent's Motion for Summary Judgment with Brief in Support (Docket Entry No. 13). Also before the court are Petitioner's request for leave to file an Addendum to Petitioner's Reply to Respondent's Motion for Summary Judgment (Docket Entry No. 14) and Respondent's Motion to Strike with Brief in Support (Docket Entry No. 15). For the reasons explained below, the court will grant Respondent's Motion for Summary Judgment, but deny his Motion to Strike as moot, deny Petitioner's request for leave to file an Addendum to Petitioner's Reply, and dismiss the petition.
I. Factual and Procedural Background
Petitioner was indicted in Montgomery County, Texas, in Cause No. 03402 for indecency with a child.*fn1 Petitioner was found guilty by a jury and was sentenced by the trial judge to forty years in prison.*fn2
A.P., the twelve-year-old victim, was the only eyewitness to the crime. At trial she testified that in the late afternoon of August 6, 2002, as she was riding her bicycle to a friend's house, she saw petitioner stop his gray Cadillac in front of her, exit the car, drop his pants and underwear to his ankles, expose his penis, and begin to masturbate.*fn3 A.P. testified that approximately fifteen seconds passed from the time she first saw petitioner to the time it took her to ride past him. In that fifteen seconds, while petitioner masturbated, A.P. testified that she made eye contact with petitioner and saw his face;*fn4 she also noticed that petitioner was not wearing a shirt and testified to seeing a black tattoo on petitioner's upper-arm.*fn5
A.P. testified that as she rode past petitioner, he reached out for her and then began to chase her. As petitioner pursued, A.P. rode her bicycle into a ditch, dropped it, and ran the short distance to her friend's house.*fn6 There she found her friend and her friend's mother, Sandy Steede, and told them what had happened. Upon hearing A.P.'s story, Sandy Steede immediately called 911. Sandy Steede also immediately called her husband, Dusty Steede, and gave him the description of the car and the perpetrator according to the description A.P. had given.*fn7
Dusty Steede testified that shortly after he received the phone call from Sandy Steede he passed a vehicle matching the description given. The car was parked at a local store close to where the crime occurred.*fn8 Dusty Steede testified that he pulled into the parking lot, obtained the license plate number from the gray Cadillac, and saw petitioner behind the wheel of the Cadillac.*fn9
Both A.P. and Dusty Steede identified petitioner as the man they saw on the day in question in a photo array, which was admitted as evidence at trial.*fn10 Each photo array was administered separately.*fn11 A.P. also identified petitioner in court as the man she saw that day.*fn12
Petitioner appealed his conviction to the Texas Court of Appeals,*fn13 raising five points of error. The Court of Appeals held that one of petitioner's five points, a claim of prosecutorial misconduct, was procedurally barred because petitioner had failed to perfect his objection at trial; the court denied the other four points on the merits, and affirmed petitioner's conviction.*fn14
Petitioner then filed a Petition for Discretionary Review with the Texas Court of Criminal Appeals, and a Writ for Certiorari with the United States Supreme Court, both of which were denied.*fn15
Petitioner filed an Application for Writ of Habeas Corpus in state court where he raised three main claims: ineffective assistance of counsel, prosecutorial misconduct, and judicial misconduct.*fn16 The state habeas trial court issued its Findings of Fact and Conclusions of Law recommending that petitioner's application be denied.*fn17 The Texas Court of Criminal Appeals followed that recommendation and denied petitioner's application.*fn18
Petitioner filed a federal petition for habeas corpus on May 30, 2007. In the petition he raised the same claims that he raised in his state application, including those held procedurally barred by the Texas Court of Appeals.*fn19 In lieu of an answer, respondent filed his Motion for Summary Judgment with Brief in Support.
Respondent contends that he is entitled to a judgment because, based on the state court records, petitioner has failed to meet his burden under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Because petitioner filed his habeas petition after April 24, 1996, the AEDPA applies. Lindh v. Murphy, 117 S.Ct. 2059 (1997). Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment and applies to habeas corpus cases, see Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000); but only to the extent that the rule is consistent with the AEDPA, see Rule 11 of Rules Governing § 2254 Cases. Under Rule 56 summary judgment is appropriate only if the pleadings and parties' submissions demonstrate that there is no genuine dispute regarding any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In habeas cases, however, the court cannot construe all facts in the light most favorable to the nonmoving party. See Woods v. Cockrell, 307 F.3d 353, 356-57 (5th Cir. 2002). The AEDPA requires the court to presume as true all facts found by the state court absent clear and convincing evidence. Id. (citations omitted); 28 U.S.C. § 2254(e)(1).
Petitioner has the burden of establishing that he is entitled to relief. Orman v. Cain, 228 F.3d 616, 619 (5th Cir. 2000). To meet his burden under the AEDPA, petitioner must establish that the state courts' adjudication of his claims was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]" 28 U.S.C. § 2254(d)(1). A state court's decision is "contrary to" clearly established federal law if the state court applied a rule that contradicts the law as established by the Supreme Court, or decides the case differently than the Supreme Court on a set of facts that are "materially indistinguishable." Coble v. Quarterman, 496 F.3d 430, 435 (5th Cir. 2007). An "unreasonable application" means more than an "erroneous application"; an "unreasonable application" exists only where "the state court correctly identifie[d] the governing legal principle from [Supreme Court] decisions but unreasonably applie[d] it to the facts of the particular case." Horn v. Quarterman, 508 F.3d 306, 312 (5th Cir. 2007) (internal quotations omitted). To determine whether petitioner has made this showing, the court must examine petitioner's underlying claims. See Del Toro v. Quarterman, 498 F.3d 486, 490-91 (5th Cir. 2007) (affirming denial of a petitioner's habeas petition because he could not establish his claim on the merits); Neal v. Puckett, 286 F.3d 230 (5th Cir. 2002) (evaluating the merits of petitioner's claim before concluding that although incorrect, the state court's decision was not an unreasonable application of federal law). In his petition, petitioner raises three main grounds for relief: prosecutorial misconduct, ineffective assistance of counsel, and judicial misconduct. Each claim will be addressed in turn.
III. Prosecutorial Misconduct
There is no factual basis for petitioner's claim that the prosecutor coached the testimony of the prosecution's witnesses. As part of petitioner's state habeas application, the prosecutor filed an affidavit, which the state habeas court found was both true and credible.*fn20 In that affidavit, the prosecutor stated that while he may have prepared and interviewed witnesses prior to trial, he never coached their testimony or told them what to say.*fn21
Petitioner has not presented any evidence directly contradicting the prosecutor's statements; petitioner's only argument is that there is circumstantial evidence in the record indicating that the prosecutor coached the witnesses.*fn22 Even if true, this circumstantial evidence neither entitles petitioner to relief nor creates a genuine issue of fact because the evidence he presents is not "clear and convincing evidence" as required by 28 U.S.C. § 2254(e)(1), and therefore cannot rebut the presumption of correctness attached to the state habeas court's findings. Accordingly, the court will deny petitioner's claim.
B. Allowing False or Perjured Testimony
Petitioner's claims that the prosecutor committed misconduct when the prosecutor allowed A.P., Sandy Steede, Dusty Steede, and Detective Lewis to offer false or perjured testimony must fail as a factual matter. Petitioner cannot prevail on this claim unless he provides evidence that "the prosecution actually kn[ew] or believe[d] the testimony to be false or perjured; it is not enough that the testimony is challenged by another witness or is inconsistent with prior statements." Kutzner v. Cockrell, 303 F.3d 333, 337 (5th Cir. 2002). The state habeas court made specific factual findings that the prosecutor did not know or believe that any of the challenged testimony was false or perjured.*fn23 Petitioner has not produced clear and convincing evidence to rebut these findings. Accordingly, the court will deny this claim.
C. Suppressing Exculpatory Evidence
Petitioner contends the prosecutor committed misconduct by suppressing exculpatory evidence. Under Brady v. Maryland, 83 S.Ct. 1194 (1963), the state has a constitutional obligation to disclose any evidence to the defense that "is material either to guilt or punishment." 83 S.Ct. at 1196-97. To prevail on a Brady claim, petitioner must establish "that (1) the prosecution suppressed evidence, (2) the evidence was favorable, (3) the evidence was material to either guilt or punishment, and (4) discovery of the allegedly favorable evidence was not the result of a lack of due diligence." Rector v. Johnson, 120 F.3d 551, 558 (5th Cir. 1997). The prosecution's duty to disclose under Brady encompasses only exculpatory evidence, including impeachment evidence, in the prosecution's possession. Id. Brady does not, however, require the disclosure of potentially exculpatory evidence "when that evidence is either in possession of the defendant or can be discovered by exercising due diligence." Id. at 558-59. Moreover, Brady imposes no duty to disclose evidence that is either neutral or inculpatory. United States v. Nixon, 881 F.2d 1305, 1308 (5th Cir. 1989).
Petitioner alleges several Brady violations, most of which lack merit. Contrary to petitioner's allegations, the prosecution had no constitutional duty to produce a copy or transcript of Sandy Steede's 911 call, to provide petitioner information regarding his own tattoos, or to produce a photograph showing that petitioner wore a moustache the day after the offense.*fn24 As the state habeas court found, petitioner had access to or knew, or should have known, about such evidence, and could have obtained the evidence through the exercise of due diligence.*fn25 Thus, as to these items of evidence, petitioner has failed to establish a Brady violation.
Moreover, the prosecution did not violate Brady by failing to provide petitioner with a copy of A.P.'s school records. The state habeas court determined, and the sworn testimony of petitioner's trial counsel confirmed,*fn26 that A.P.'s school records contained no information favorable to the defense and were not material to petitioner's guilt.*fn27 Petitioner has provided no evidence indicating otherwise.
There is, however, some merit to petitioner's final contention that the prosecution had an obligation under Brady to disclose the fact that A.P. had noticed a tattoo on the perpetrator's arm. Respondent does not dispute that this evidence constituted, at the very least, impeachment evidence. Respondent's only contention on summary judgment is that petitioner's claim must fail because the evidence was not "suppressed" within the meaning of Brady since the evidence was disclosed during trial through A.P.'s testimony. Although the prosecutor may not have "suppressed" the evidence in the sense that he prevented it from being either admitted at trial or disclosed to the defense, a Brady violation may still exist when exculpatory evidence is disclosed for the first time at trial if "the defendant was prejudiced by the tardy disclosure."
United States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985). However, "[i]f the defendant received the material in time to put it to effective use at trial, his conviction should not be reversed simply because it was not disclosed as early as it might have and, indeed, should have been." Id.
Petitioner contends that he was prejudiced by the prosecutor's failure to timely disclose A.P.'s testimony concerning the tattoo because pretrial disclosure of A.P.'s identification of the single tattoo would have alerted him of the need to present or provide evidence of his many tattoos to impeach A.P.'s testimony. The problem with petitioner's argument is that he did provide evidence of his many tattoos at trial: Petitioner's mother testified that petitioner was covered in tattoos "from his waist up to his neck, all down his arms and back."*fn28 Petitioner has not indicated what more he would have provided had the prosecution given him more notice, or what effect such additional evidence would have had on the trial, if any. Therefore, the court concludes that petitioner has failed to establish that he was prejudiced by the prosecutor's tardy disclosure of this impeachment evidence, and will therefore deny petitioner's Brady claim. Cf. United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983) (holding that when the Brady evidence at issue is limited to impeachment evidence, disclosure on the day of trial will generally satisfy due process).
D. Improper Jury Argument
Petitioner argues that he is entitled to habeas relief because the prosecutor argued improperly at several points during his closing argument. When deciding a claim of prosecutorial misconduct on collateral review, the court does not apply the same broad standard applied on direct review. Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir. 2000). Instead, the court may grant relief only if the prosecutor's argument was improper and "so prejudicial that the state court trial was rendered fundamentally unfair within the meaning of the Due Process Clause of the Fourteenth Amendment." Jones v. Butler, 864 F.2d 348, 356 (5th Cir. 1988). Petitioner argues that he was denied due process when, during closing argument, the prosecutor ...