Thursday, March 25, 2010
Media Advisory: Franklin Dewayne Alix scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following about Franklin Dewayne Alix, who is scheduled to be executed after 6 p.m. on Tuesday, March 30, 2010. A Texas jury sentenced Alix to death in September 1998 for the murder of Eric Bridgeford.

FACTS OF THE CRIME

In the early morning of January 3, 1998, a nineteen-year-old woman was abducted at gunpoint after getting out of her car at her family’s southwest Houston townhouse.

The man forced the woman into the trunk of her car, closed it, and then drove the vehicle out of the townhome complex. The man threatened to kill the woman unless he could get some money. The woman told the man her credit card cash limits were full and that she could not remember her PIN numbers. She suggested the man take items from her home and pawn them to get money.

The man returned the woman to her home and pointed his gun in her face, and stated, “Do you see this? Anything goes wrong in here, and I’ll kill you and anyone else in the house.”

As they walked through the woman’s home, the man looked for items to remove. Ultimately, several items, including two televisions, a videocassette recorder, and a Nintendo game, were taken from the home. The woman and her assailant were still on the premises when her brother, Eric Bridgeford, returned home with a friend. The two young men ran from the intruder, who then shot Eric in the back and fled the area on foot. The brother died from the injury.

On January 6, 1998, Houston police arrested Alix and obtained his videotaped confession to Eric’s murder. Alix led officers to the murder weapon, an examination of which confirmed that the bullet recovered from Eric’s corpse was fired from Alix’s gun.

EVIDENCE OF FUTURE DANGEROUSNESS

During punishment, the State introduced evidence of Alix’s lengthy and violent criminal history, which spanned several years and involved a litany of assaults, homicides, kidnapings, robberies, and rape.

In September 1992, Alix attempted to steal a shuttle bus from Alamo-Rent-a-Car. The police apprehended Alix after a ten-minutes chase, and Alix was sentenced to six months in Harris County Jail for theft.

On April 8, 1993, a woman noticed that her Caprice Classic was missing from her driveway. Later that night, a Houston police officer spotted the car and arrested the driver, Alix, after stopping the vehicle. Alix was sentenced to three years in state prison for unauthorized use of a motor vehicle.

On July 11, 1996, a Houston police officer stopped Alix for jaywalking and found that he had a pistol and ammunition. Alix was sentenced to 70 days in Harris County Jail for carrying a weapon.

On August 15, 1997, Alix drove away from the gas pump at Sunmark Convenience Store without paying for his gas. However, Alix became stuck in traffic and the store owner caught up. Alix then stepped out of his car and punched the owner in the face. The owner identified Alix in a photo spread and in open court as the person who robbed him.

On August 8, 1997, Alix fatally shot Gregorio Ramirez during a robbery attempt in the parking lot of an apartment complex.

On the night of September 2, 1997, Alix was driving a vehicle that bumped into the rear of a car driven by a woman. When the woman asked Alix for his insurance papers, he threw the woman to the ground and pointed a gun at her head. Alix took a ring from the woman and hit her several times. Alix fled after the woman starting screaming and another woman came outside her apartment and said she was calling police.

On September 29, 1997, Alix pointed a gun at a woman as she got out of her car at her apartment complex and took her purse to look for money. He then made her get into the trunk of her car and drove off in the vehicle. Alix later pulled over and forced the woman to perform oral sex on him. Alix later ran off.

On October 5, 1997, Alix shot and killed Selemawi Tewolde in an apartment complex parking lot In the early morning hours of October 13, 1997, Alix robbed a man at gunpoint at an apartment complex.

On November 30, 1997, when a man got out of his car in an apartment complex parking lot, Alix confronted him, demanding his money and keys. Alix then locked the man in the trunk of the car.

On December 6, 1997, an apartment security guard was making his rounds at midnight when he was stopped by Alix at gunpoint. At Alix’s direction, the security guard turned around and ran, and Alix fired three shots, hitting him in the back. The victim survived.

On December 19, 1997, Alix shot a townhome security guard in the face after searching for money. The guard survived.

On December 19, 1997, Alix jumped out of a red car and robbed a man in an apartment complex parking lot. Alix told the man to run. The man got in the red car and drove away. The man later stopped the car and found a girl in the trunk. The girl told the man she had been robbed and raped.

On January 3, 1998, in an apartment complex parking lot, Alix pulled a woman from her vehicle at gunpoint, took her money and drove off in her vehicle, after forcing her into the trunk. The woman was able to get out about 30 minutes later.

On January 4, 1998, Alix robbed a man who was walking to his townhome.

On January 4, 1998, Christopher Thomas was shot in the head. His body was found lying on the ground. Alix confessed to the killing.

Evidence also showed that Alix was a violent inmate while he was in the Harris County Jail awaiting his capital murder trial. The record reflects that he was involved in fights with other inmates on both April 6, 1998, and May 27, 1998

PROCEDURAL HISTORY

01/03/98 - Alix killed Eric Bridgeford.
07/09/98 - A Harris County grand jury indicted Alix for capital murder.
08/26/98 - A Harris County jury convicted Alix of capital murder.
09/02/98 - The trial judge sentenced Alix to death.
02/16/00 - The Texas Court of Criminal Appeals affirmed Alix’s conviction and sentence.
06/27/00 - Alix filed an original application for a state writ of habeas corpus.
12/19/01 - The Texas Court of Criminal Appeals denied state habeas relief.
12/16/02 - Alix filed a petition for a federal writ of habeas corpus.
10/29/03 - A Houston U.S. district court dismissed Alix’s petition without prejudice.
11/25/03 - Alix filed a second, subsequent state application for a writ of habeas corpus.
02/06/06 - Alix filed a third, subsequent state application for a writ of habeas corpus.
09/27/06 - The Texas Court of Criminal Appeals denied habeas relief.
01/02/07- Alix refiled his federal petition with a Houston U.S. district court.
03/27/08 - The district court denied habeas relief and issued final judgment.
02/09/09 - The U.S. Court of Appeals for the Fifth Circuit affirmed denial of habeas relief.
05/04/09 - Alix filed a petition for certiorari review with the U.S. Supreme Court.
10/05/09 - The U.S. Supreme Court denied Alix’s petition for certiorari review.
10/28/09 - The trial court scheduled Alix’s execution for Tuesday, March 30, 2010.

Texas Execution Information Center by David Carson.

Franklin DeWayne Alix, 34, was executed by lethal injection on 30 March 2010 in Huntsville, Texas for killing a man whose sister he had abducted and was robbing.

On January 3, 1998, Alix, then 22, abducted Karyl Bridgeford, 19, as she was exiting from her car at her family's southwest Houston townhouse. Alix forced Bridgeford into her trunk, closed it, and drove away with her. He demanded money from her and threatened to kill her. Bridgeford told him that her credit cards were maxed out and she could not remember her PIN codes, but he could take items from her home and pawn them for cash.

Alix then returned Bridgeford to her home. With his gun pointing in her face, he said, "Do you see this? Anything goes wrong in here, and I'll kill you and anyone else in the house." Alix then walked through the home and took several pieces of electronic equipment. He also raped Bridgeford. While Alix was in the home, Bridgeford's brother, Eric, returned home with a friend. The two young men ran, but Alix shot Eric in the back, killing him. Alix then fled the area on foot.

Houston police arrested Alix on 6 January. He confessed to Eric's murder and led officers to the murder weapon. A firearms expert confirmed that the bullet recovered from Eric's body was fired from Alix's gun.

At his trial, Alix admitted to abducting Karyl and forcing her into the trunk of her car, but he claimed that his sexual intercourse with her was consensual, the items taken from her home were gifts, and that the killing was in self defense.

Alix had a prior felony conviction for unauthorized use of a motor vehicle, for which he spent three years in prison from 1993 to 1996. Soon after he was released, he was back in jail on a misdemeanor conviction for carrying a gun illegally.

In 1997, Alix embarked on a violent crime spree. Most of his crimes occurred or began in apartment complexes, and several of them involved men or women being locked inside the trunks of their cars. He perpetrated at least 14 violent crimes - including 4 murders - from August 1997 until his arrest in January 1998. He killed Gregorio Ramirez on 8 August, Selemawi Tewolde on 5 October, Eric Bridgeford on 3 January, and Christopher Thomas on 4 January.

A jury convicted Alix of capital murder in September 1998 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in February 2000. All of his subsequent appeals in state and federal court were denied.

In 2006, the Houston Police Department's crime lab was embroiled in controversy after complaints of shoddy work and mishandled evidence in numerous cases. In Alix's case, lawyers argued that the crime lab failed to report at his punishment hearing that his DNA was not found on evidence from Gregorio Ramirez's murder. The appeals courts however, ruled that Alix's "long history of violence" constituted a "larger body of proof" and that one set of disputed DNA results did not undermine the jury's decision to sentence him to death.

"I just got myself caught up in a web", Alix told a reporter in an interview from death row. He said he owed a friend "a couple of thousand dollars" and was forced to turn to robbery to get money. "I wanted to do the right things in life, but I got caught up with the wrong folks."

"I killed the dude," he said, referring to Eric Bridgeford. "I wasn't trying to, but I did. When the dude charged at me, the gun went off." "I don't want to die. I'm remorseful. But I won't apologize," he said. He denied raping Karyl Bridgeford and said that she "volunteered to give me her TV" if he wouldn't kill her.

Of his other crimes, Alix said, "I'm not saying nothing happened to those people." He admitted committing "some of the robberies", but "no other murders" and no rapes. Karyl and her mother, Janey, attended Alix's execution, as did members of Christopher Thomas's family.

In his last statement, Alix offered an apology to the Thomas family. "I been wanting to apologize to y'all for your son," he said. "They told me not to do it in court. I wrote him a letter, but they told me that they tore it up in court." Alix admitted that he "made lots of mistakes", but also said "I am not the monster they made me out to be." He said he committed "no rapes". He also expressed love to his family. When he finished his last statement, the lethal injection was started. He was pronounced dead at 6:20 p.m.

Dallas Morning News

"Man executed in slaying of Houston man during 1998 robbery." (AP March 31, 2010)

HUNTSVILLE, Texas – A condemned prisoner was executed Tuesday evening for fatally shooting a Houston man during a 1998 robbery.

Franklin Dewayne Alix, 34, received lethal injection for the slaying of 23-year-old Eric Bridgeford, who interrupted Alix as he robbed the apartment of Bridgeford's sister. The sister also had been abducted and raped in what authorities said was part of a six-month series of crimes by Alix. The execution was the fifth this year in Texas, the nation's busiest capital punishment state.

"I'm not the monster they painted me to be," Alix said from the death chamber gurney, saying he "messed up and made poor choices." He denied responsibility for several rapes and said he "did no drugs." "It is what it is," he said. "I've got peace in my heart." Seven minutes later, at 6:20 p.m., Alix was pronounced dead.

Bridgeford's sister and her mother were among those to watch Alix die. Others in the death chamber's witness area were the father and sister of Christopher Thomas, another man authorities said Alix killed the day after he gunned down Bridgeford. In all, authorities linked Alix to at least four killings. Alix's lawyer, Robert Rosenberg, said appeals to stop the execution were exhausted.

According to trial testimony, Alix abducted Bridgeford's sister Jan. 3, 1998, forced her into the trunk of a car, drove around and raped her, then brought her home. As he was ransacking her apartment, Bridgeford came in, saw Alix with a gun and ran but was shot in the back. Alix fled and was arrested a few days later.

Houston Chronicle

"Houston man executed in 1998 slaying," by Allan Turner. (March 31, 2010)

HUNTSVILLE — As members of his victim's family quietly wept, Houston killer Franklin DeWayne Alix Tuesday went to his execution apologizing for his crime, but insisting that he was “not the monster they painted me.”

Alix, 34, once described by prosecutors as “a poster boy for the death penalty,” was put to death for the January 1998 murder of Eric Bridgeford. Joining Bridgeford's relatives in the witness room were the father and sister of Christopher Thomas, who prosecutors said Alix also killed.

Minutes before the lethal drugs began to flow, Alix, strapped to the gurney in the state's death chamber, admitted he had “made lots of mistakes” leading to the Bridgeford murder. But, he denied being an alcoholic, a drug user or a rapist. “I messed up,” he said, “made poor choices.” Looking toward a witness room occupied by his friends and relatives, Alix said, “I got peace in my heart.”

Alix was declared dead at 6:20 p.m. — seven minutes after the deadly drugs were administered.

Speaking to reporters after the execution, relatives of both victims said they had forgiven the killer. “If you don't forgive, it will consume you,” said Fernellifa Jolivette, Thomas' sister. “It will eat you alive ... He has God to answer to.” Bridgeford's mother, Janey Bridgeford, carried a photograph of her son into the witness room. “Every photo has been of Alix,” she said. “I wanted to put a face to this ... We live one day at a time. I can't tell you what my daughter and family have gone through. It was two years before I could go back to work.”

Alix was the fifth killer executed in Texas this year and the first from Harris County. He killed Bridgeford on Jan. 3, 1998, during a burglary at the Bridgeford residence. Early that morning, court records indicate, Alix accosted Bridgeford's sister at gunpoint in the parking lot of the family home, forced her into a car trunk, drove her to an ATM where he unsuccessfully tried to use her bank cards, sexually assaulted her, then returned to her home to steal electronics.

The burglary was interrupted by the arrival of Bridgeford and a friend. Official documents said Bridgeford bled to death after Alix shot him in the chest. Alix later led police to a .380-caliber pistol hidden nearby. In a recent death row interview, Alix admitted firing a shot, but said he had not intended to kill Bridgeford.

During the punishment phase of his trial, prosecutors told jurors Bridgeford's death was part of a six-month crime spree in which he also committed three capital murders, two attempted capital murders, eight aggravated robberies, one robbery and two aggravated sexual assaults accompanied by four aggravated kidnappings. Christopher Thomas, they said, was among the murder victims.

Alix's attorneys challenged DNA testing in one of the three extraneous murders, arguing that it had been performed by the Houston Police Department's scandal-rocked crime lab. Subsequent testing of evidence in the case yielded ambiguous results, the Texas Court of Criminal Appeals reported, and the trial judge held that a crime lab chemist's testimony was unreliable. Still, appeals court judges found no reasonable probability that the jury would have changed its decision based on the question of the chemist's credibility. Further, the court found “without a reasonable doubt” that the chemist's testimony did not contribute to punishment.

In the death row interview, Alix denied he committed all the crimes alleged during his trial's punishment phase. He said the sexual assaults, including that of Bridgeford's sister, were committed by a man for whom he sold drugs. In his youth, trial testimony revealed, Alix had been active in his church, singing in the choir and teaching Sunday school. One witness described him as having been a “typical fun-loving teenager.”

Huntsville Item

"Man executed for ’98 Houston murder," by Mary Rainwater. (March 31, 2010)

HUNTSVILLE — Condemned inmate Franklin DeWayne Alix was executed Tuesday for the robbery-slaying of a Houston man in 1998, making his the fifth execution in the state so far this year. Alix, 34, received lethal injection for the slaying of 23-year-old Eric Bridgeford, who interrupted Alix as he robbed the apartment of Bridgeford’s sister. The sister also had been abducted and raped in what authorities said was part of a six-month series of crimes by Alix more than 11 years ago.

“I am not the monster they made me out to be,” Alix said in his last statement to the victims’ family. “I made lots of mistakes that took your son. I messed up, made poor choices. “I’ll take it to the grave, I will be at peace,” he added. “It is what it is. I got peace in my heart.”

Alix was pronounced dead at 6:20 p.m., just seven minutes after the lethal drugs entered his system. Among those witnessing the execution were Bridgeford’s sister and her mother. Others in the death chamber’s witness area were the father and sister of Christopher Thomas, another man authorities said was killed by Alix the day after Bridgeford was slain.

“Our lives are forever changed but we need to go on,” Janey Bridgeford said after watching her son’s killer die. “It was hard. I didn’t take pleasure in that. I have forgiven him. “I didn’t think I’d get a verbal apology from him. I understood he may not come clean with everything.”

That message of forgiveness was echoed by Thomas’ sister Fernellifa Jolivette. “I have to accept it and I have to forgive in order for me to find peace within myself and a place in Heaven,” Thomas’ sister Fernellifa Jolivette said afterward. “If you don’t, it will consume you. It will eat you alive ... In the end, he has God to answer to.”

In all, authorities linked Alix to at least four killings. Alix’s lawyer, Robert Rosenberg, said court appeals to stop the execution were exhausted.

According to trial testimony, Alix abducted Bridgeford’s sister Jan. 3, 1998, forced her into the trunk of a car, drove around and raped her, then brought her home. As he was ransacking her apartment, Bridgeford came in, saw Alix with a gun and ran off but was shot in the back. Alix fled and was arrested a few days later.

Scheduled to die next, on April 22, is William Berkley, 31, condemned for the March 2000 abduction, robbery, rape and fatal shooting of 18-year-old Sophia Martinez, whose body was found outside El Paso.

Houston Chronicle

"Appeal Denied for Alix." (AP February 10, 2009, 04:16:49 PM)

HOUSTON — A federal appeals court has upheld the conviction and death sentence of a Houston man tied to at least four slayings during a six-month crime wave. The ruling from the 5th U.S. Circuit Court of Appeals moves Franklin Dewayne Alix, 33, a step closer to execution for fatally shooting Eric Bridgeford, 23, during a robbery after abducting and raping Bridgeford’s sister.

Attorneys for Alix, described in his 1998 trial as a drug addict, had argued at his trial that the sex with Bridgeford’s sister was consensual and that the shooting was in self-defense.

In his appeal to the New Orleans-based 5th Circuit, Alix was seeking permission to move forward with appeals contending a lower federal court should have allowed him an evidentiary hearing before rejecting his appeal. He also claimed a medical examiner improperly testified against him, Harris County prosecutors knew that testimony was improper, DNA evidence excluding him from the slaying improperly was withheld by prosecutors and that his trial lawyers were deficient.

In its ruling late Monday, the 5th Circuit rejected the claims and denied Alix what’s known as a certificate of appealability. Alix does not yet have an execution date.

During his trial, prosecutors showed the 10th-grade dropout was responsible for the slayings, which all occurred in Houston. He was charged but not tried for at least one of the other slayings.

According to trial testimony, Alix abducted Bridgeford’s sister, raped her, forced her into the trunk of a car and drove her back home. As he was ransacking her apartment, Bridgeford came home, saw Alix with a gun and ran off but was shot in the back. Alix drove away in a stolen car and was arrested a few days later.

During closing arguments in the punishment phase of his trial, Alix became belligerent and had to be removed from the courtroom. Prosecutors told jurors of his involvement also in at least two rapes, two attempted murders, abductions and at least eight robberies. DNA evidence used during his trial surfaced in a scandal involving the Houston Police Department’s crime lab when retests discredited the initial results.

The 5th Circuit panel noted that a federal district judge, in rejecting Alix’s appeal, said the DNA evidence presented at his punishment phase was part of a “larger body of proof,” including Alix’s long history of violence, that showed jurors he posed a future danger and should be sentenced to death.

In his federal appeal, Alix also contested the medical examiner testimony, arguing the deputy examiner who conducted the autopsy wasn’t licensed, and that the district attorney’s office knew and suppressed the information. The Texas Court of Criminal Appeals said a medical examiner may delegate duties to a deputy who is not licensed. And the 5th Circuit said even if the state court was wrong, there was no constitutional violation for evidence improperly admitted under state law.

The appeals court also said Alix’s lawyers were diligent in their defense, that they were aware the Harris County Medical Examiner’s Office was under investigation for its practices and had questioned the coroner about the investigation in their cross-examination at trial.

ProDeathPenalty.Com

Franklin Dewayne Alix engaged in a six-month-long violent crime spree in the late 90s. In the early morning hours of January 3, 1998, Alix shot and killed Eric Bridgeford while in the course of committing aggravated sexual assault, robbery and burglary against Eric's sister, Karyl Bridgeford. Alix admitted to approaching Karyl, then robbing her and forcing her into the trunk of his car and forced her to take him to Eric's room to steal items. There Alix culminated this episode by murdering Eric Bridgeford, taking items from his room and stealing a car that belonged to one of Eric's friends. Alix claimed that the sexual intercourse was consensual, the items taken were gifts, and the homicide was in self-defense. Alix also claimed to have been coerced into robbing Karyl by Kevin Smith, a man who allegedly threatened to kill Alix if he did not pay a drug debt.

During the sentencing phase of the trial, the State produced evidence of Alix’s lengthy and violent criminal history, including three other capital murders, two attempted capital murders, eight aggravated robberies, one robbery, and two aggravated sexual assaults accompanied by four aggravated kidnappings. The State also introduced testimony from the widow of one of Alix’s victims, Gregorio Ramirez, who identified Alix as the shooter in her husband’s homicide on August 8, 1997. Alix is also suspected in the shooting death of Selamawi Tewolde on Oct. 5, 1997. In the last crime of the spree, Christopher Thomas, 34, was killed in his driveway. Alix was convicted of capital murder on September 2, 1998 and sentenced to death.

Canadian Coalition Against the Death Penalty

'Lo, You, Hello, my name is Franklin D. Alix, Sr. I am 25 years old, born on Aug. 6, 1975. I am on Texas Death Row. I came here Nov. 12, 1988. I have five children which ages range from 6 to 2 years old. (note Bdays are coming up) that I love very much.

I am looking for a penpal male / female, age 25 & up that I can write to every chance I get. Someone who doesn't mind forming a friendship, a person who will let me enter into their world so I can escape the horrible one I dwell upon, through the leters you write me. I am not a religious person anymore, but I do believe and practice to be a respectable of others and myself kind of person for the rest of my living life I can live.

I love reading Black history books (when fortunate), Auto & Biographies, and NF books of enlightenment that will help me deal with everydays' mind challenges as I dwell in an oppressive place. I not knowing how to live life (being confused in the mind) stop me from being able to analyze and make decent and respectable decisions that affects me and the people areound me(my community). I like to having discussion over issue of the world that effects the way we live. But I also like to laugh and joke around as well. I understand a lot about life that I didn't at first, so that helps me be a better more enlightened person than I was before. So if you feel that you would like to be my pen-friend then please write. Hope to hear from you soon !!!!

Sincerely,

Franklin D Alix Sr.
#999286
3872 FM 350 South
Livingston, Texas 77351 USA

Ex Parte Alix, Not Reported in S.W.3d, 2006 WL 2766361 (Tex.Cr.App. 2006). (State Habeas)

Background: After defendant's capital murder conviction and sentence were affirmed, defendant applied for writ of habeas corpus. The 174th District Court, Harris County, entered findings of fact.

Holding: Thereafter, the Court of Criminal Appeals held that alleged prosecutorial misconduct during punishment phase did not contribute to punishment so as to warrant habeas relief. Application denied.

PER CURIAM.

This is a subsequent application for habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5.

Applicant was convicted of capital murder on September 2, 1998. On direct appeal we affirmed the conviction and sentence. Alix v. State, No. 73,210 (Tex.Crim.App. March 13, 2000). On June 27, 2000, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Alix, No. WR-50,786-01 (Tex.Crim.App. December 19, 2001). Applicant then filed this subsequent application alleging constitutional errors in his trial stemming from improper procedures in the Houston Police Department (HPD) Crime Lab. We determined that the application met the requirements for consideration of subsequent claims under Article 11.071, Section 5(a)(1), and remanded the case to the convicting court for resolution of the claims. The convicting court reviewed exhibits submitted by the parties and entered findings of fact.

Applicant was found guilty of the capital murder of Eric Bridgeford. Applicant engaged in a six-month-long violent crime spree that included the capital murder of Eric Bridgeford. The events on the evening that led to the capital murder of Eric began when applicant approached Eric's sister. The jury heard of the aggravated robbery of Eric's sister, her kidnapping and forced submission to applicant's aggravated sexual assaults before applicant forced her to take him to Eric's room to steal items. There applicant culminated this episode by murdering Eric Bridgeford, taking items from Eric's room, and stealing a car that belonged to one of Eric's friends. During the punishment phase of trial, the State presented extraneous-offense evidence of three capital murders, two attempted capital murders, eight aggravated robberies, one robbery, and two aggravated sexual assaults accompanied by four aggravated kidnappings. During the presentation of evidence about one of these capital murders, an HPD Crime Lab chemist testified that she had recovered DNA, which matched applicant, from a piece of gauze worn by the perpetrator. The wife of the victim of this extraneous capital murder also testified and made an in-court identification of applicant as the person who had murdered her husband.

After questions about the procedures of the HPD Crime Lab surfaced, evidence from this case, among others, was retested. The retesting did not confirm or negate the testimony of the chemist as to this extraneous offense. Based on this ambiguous result, applicant filed this subsequent application for writ of habeas corpus.

On remand of this subsequent application, the convicting court found that, while applicant may have been a contributor to the pertinent DNA, the testimony of the chemist “should be deemed unreliable.” Applicant argues that this amounts to exculpatory evidence that was not divulged and to prosecutorial misconduct in using false testimony and urges that he is therefore entitled to a new trial on punishment. The State has a duty to divulge exculpatory or impeachment evidence; failure violates a defendant's right to due process. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App.2003). When the State uses testimony it knows to be false, the defendant is denied due process. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Ex parte Adams, 768 S.W.2d 281, 292 (Tex.Crim.App.1989). On collateral review of such claims, it is the burden of the applicant to not only show there is a material violation, Ex parte Dutchover, 779 S.W.2d 76 (Tex.Crim.App.1989), but that the error contributed to his conviction or sentence. Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

After reviewing all of the evidence presented in the trial of this case, we cannot say that, had evidence to impeach the testimony of the HPD chemist as to this one extraneous capital murder been divulged, there is a reasonable probability that the sentence would have been different. We also conclude, beyond a reasonable doubt, that the introduction of the testimony of the HPD chemist, even if false, did not contribute to the punishment. Therefore, applicant's request for relief is denied.

After the convicting court had resolved the issues upon which the case was remanded, applicant filed another application for writ of habeas corpus entitled “Petitioner's Amended Second Supplemental Habeas Corpus Petition and Motion to Conduct Discovery.” The convicting court properly identified this as a subsequent application and forwarded it to this Court to determine if it met the requirements of Article 11.071, section 5, for consideration of the claims. We have reviewed the amended application and find that it does not meet the requirements of Article 11.071, Section 5; the amended second supplemental application is dismissed as an abuse of the writ.

IT IS SO ORDERED THIS THE 27TH DAY OF SEPTEMBER, 2006.

Alix v. Quarterman, 309 Fed.Appx. 875 (5th Cir. 2009). (Habeas)

Background: Petitioner convicted in state court of capital murder filed petition for writ of habeas corpus. The United States District Court for the Southern District of Texas dismissed petition without prejudice to exhaust claims in state court. After the Texas Court of Criminal Appeals denied petitioner's second petition on merits and dismissed third petition as abuse of writ, petitioner filed second petition for federal habeas corpus. The District Court denied petition, and then denied request for certificate of appealability (COA).

Holdings: On petitioner's application for COA, the Court of Appeals held that: (1) COA would not issue to address denial of evidentiary hearing on petition; (2) petitioner had burden of proving that he was denied due process when prosecutor allegedly suborned perjury; (3) federal habeas corpus relief would not lie to correct any error in state court's admission of coroner's testimony regarding victim's autopsy; (4) petitioner was not entitled to federal habeas relief on claims of prosecutorial misconduct; and (5) petitioner was not entitled to federal habeas relief on claim that trial counsel was ineffective. COA denied.

PER CURIAM:

(Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.)

Petitioner-Appellant, Franklin Dewayne Alix is a Texas death row inmate who seeks a certificate of appealability to appeal the district court's denial of his petition for habeas corpus relief under 28 U.S.C. § 2254. For the reasons set forth below, we deny the request.

I. FACTS AND PROCEEDINGS

In the early morning hours of January 3, 1998, Alix shot and killed Eric Bridgeford while in the course of committing aggravated sexual assault, robbery and burglary against his sister, Karyl Bridgeford. Alix admitted to robbing Karyl and forcing her into the trunk of his car but claimed that the sexual intercourse was consensual, the items taken were gifts, and the homicide was in self-defense. Alix also claimed to have been coerced into robbing Karyl by Kevin Smith, a man who allegedly threatened to kill Alix if he did not pay a drug debt.

Along with other evidence presented at trial, the prosecution introduced the testimony of Dr. Delbert Wayne Van Dusen, of the Harris County Medical Examiner's Office, who performed the autopsy of Eric. The parties debate the significance of certain circumstances surrounding an investigation of the Examiner's Office and Dr. Van Dusen's licensing.

During the sentencing phase of the trial, the State produced evidence of Alix's lengthy and violent criminal history. The State also introduced testimony from the widow of one of Alix's victims, Gregorio Ramirez, who identified Alix as the shooter in her husband's homicide. A piece of bloody gauze recovered from the scene of this crime was also admitted into evidence. Testing initially indicated that Alix's DNA was present on the gauze. This finding was later proved inconclusive and became the basis for the dismissal without prejudice of Alix's first federal habeas petition. Alix was convicted of capital murder on September 2, 1998 and sentenced to death.

On March 13, 2000, the Texas Court of Criminal Appeals (“CCA”) affirmed Alix's conviction and sentence. Alix sought state habeas relief which was denied. Alix then filed a timely federal habeas petition along with a motion for discovery and abatement, raising claims that irregularities being independently investigated at the Houston Police Department crime lab may have implicated DNA evidence used against him. The district court dismissed Alix's petition without prejudice to allow for an analysis of these claims in state court. Alix subsequently filed a second state habeas petition, and then a third petition, raising additional claims. The CCA denied the second application on the merits and the third petition as an abuse of writ.

Thereafter, Alix filed a second federal habeas petition. The district court denied this petition, declined to issue a certificate of appealability (“COA”), and granted summary judgment in favor of the State. Alix now appeals, seeking a COA under 28 U.S.C. § 2254. Alix argues that the district court erred by: 1) abusing its discretion in failing to conduct an evidentiary hearing; 2) failing to find that the state courts erroneously applied Napue v. Illinois; 3) failing to find that the state courts erroneously applied Brady v. Maryland; and 4) finding that Alix was not entitled to relief under Strickland v. Washington.

II. STANDARD OF REVIEW

A petitioner must obtain a COA before appealing the district court's denial of habeas relief. 28 U.S.C. § 2253(c)(1). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals....' ” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting 28 U.S.C. § 2253(c)(1)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA petitioner “must make a substantial showing of the denial of a constitutional right, a demonstration that ... includes showing that reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotation omitted). As the Supreme Court has explained:

The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court's application of AEDPA to petitioner's constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals sidesteps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction. Miller-El, 537 U.S. at 336-37, 123 S.Ct. 1029.

Where an application for a writ of habeas corpus was adjudicated on the merits in state court proceedings, a COA is not issued unless the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1)-(2).

“Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination.” ShisInday v. Quarterman, 511 F.3d 514, 520 (5th Cir.2007). “[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

III. DISCUSSION
A. Evidentiary Hearing

Alix claims that the district court should be reversed because it failed to grant him an evidentiary hearing before denying his petition on the merits. Relying on Hall v. Quarterman, 534 F.3d 365 (5th Cir.2008), Alix argues that he did not have full access to the discovery process in his state habeas proceedings and was therefore denied a full and fair hearing. He further asserts that the district court's determination that he was not entitled to an evidentiary hearing on his federal petition is reviewable under the abuse of discretion standard set forth in Hall.

As previously noted, a COA petitioner must make a substantial showing that he has been deprived of a constitutional right. Slack, 529 U.S. at 484, 120 S.Ct. 1595. If no constitutional violation is asserted, the non-constitutional claims are only considered to the extent that they are connected to a claim on which a COA is granted. Lewis v. Quarterman, 272 Fed.Appx. 347, 351 (5th Cir.2008) (unpublished). Thus, a petition challenging an evidentiary ruling may only be entertained as corollary to a constitutional violation. Id.

Alix asserts no denial of a constitutional right in his evidentiary challenge. Therefore, no COA is issuable. To the extent that the district court's denial of an evidentiary hearing is salient to his remaining challenges, it will be considered in conjunction with those claims. Furthermore, Alix's reliance on Hall is misplaced as this court only reached the issue of whether the petitioner was entitled to an evidentiary hearing after granting a COA on the claim. Hall, 534 F.3d at 367.

B. Prosecutorial Misconduct Under Napue

Alix claims that the prosecution introduced false DNA testimony linking him to the murder of Ramirez and violated his rights through the presentation of autopsy evidence from Dr. Van Dusen. Alix also contends that, during closing argument, the prosecution mischaracterized Dr. Van Dusen's testimony and improperly argued that Alix fabricated his claims of coercion by Smith. These acts, he asserts, constitute due process violations under the Fourteenth Amendment. Alix argues that the district court, as well as the state courts, misapplied Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), in analyzing his claims of prosecutorial misconduct by placing the burden on him, rather than the prosecution, to establish that he was prejudiced by the challenged conduct. He also asserts that the district court erred in finding that the prosecution committed no Napue violation. Further challenging the district court, Alix argues that it conflated the legal principles of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), with those set forth in Napue.

Alix's arguments fail; reasonable jurists would not debate the correctness of the district court's denial of relief. In Napue, the Supreme Court held that, where a witness provides false testimony, known to be so by the prosecution and the State does nothing to correct it, the defendant is denied due process. 360 U.S. at 269, 79 S.Ct. 1173. In its Napue discussion, the district court laid out the well-settled rule that, to succeed in a due process violation claim, petitioner must show: “(1) [the witness] gave false testimony; (2) the falsity was material in that it would have affected the jury's verdict; and (3) the prosecution used the testimony knowing it was false.” May v. Collins, 955 F.2d 299, 315 (5th Cir.1992). Alix's assertion that the burden of proof rests with the prosecution to disprove his Napue allegations is contrary to clear precedent. There can therefore be no debate that the district court correctly placed the burden on Alix to prove that the State knowingly suborned perjury.

Furthermore, while the district court's opinion set forth the Brady and Napue standards jointly, it discussed each claim separately. This analysis was proper and not contrary to settled federal law.

In applying Napue and its progeny to Alix's claims of prosecutorial misconduct, the district court's determination that Alix failed to establish such a violation is neither contrary to nor an unreasonable application of federal law. The district court denied relief on Alix's claim that Dr. Van Dusen's testimony should have been excluded from trial because he was not licensed in Texas. Alix argues that the CCA applied the wrong state law in finding that a medical examiner may delegate duties to deputy examiners, such as Dr. Van Dusen, who are not licensed. Even if we assume arguendo that the state court erred, there is no due process violation claim for evidence improperly admitted under state law. “We have stated many times that federal habeas corpus relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (internal quotations omitted).

With respect to the prosecution's closing arguments, the district court found Alix's claims without merit on two independent grounds: 1) any challenges to the prosecution's closing arguments were procedurally barred for failure to timely object, Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); and 2) Alix made no showing of prejudice stemming from these statements even if not waived. United States v. Wise, 221 F.3d 140, 152 (5th Cir.2000). The district court undertook the two-step analysis outlined in Wise: 1) whether the prosecution made an improper remark, and 2) whether the remark affected the substantive rights of the defendant. Id. The district court reasoned that the prosecution's statements regarding both Dr. Van Dusen's expert status as well as Alix's fabrication of Smith's existence were permissible under Texas law as summations of, and reasonable inferences from, the evidence. See Moody v. State, 827 S.W.2d 875, 894 (Tex.Crim.App.1992). The district court's application of Wise and Moody is an appropriate application of federal law.

During the sentencing phase of Alix's trial, to show Alix's continued danger to society, along with other evidence linking Alix to the homicide of Ramirez, the State introduced DNA evidence and the testimony of a chemist. Both indicated that Alix's DNA was on the gauze recovered from the crime scene. The presence of Alix's DNA was later called into question. As the district court noted, Alix did not argue-much less carry the burden of showing-that the testimony regarding the DNA evidence was false, material, and knowingly used by the prosecution. May, 955 F.2d at 315. Alix simply re-asserts that it is the State's burden to prove that he was not prejudiced by the evidence. The district court's denial of relief is not debatable among reasonable jurists.

Because Alix has failed to meet the requirements for an issuance of a COA on his Napue claim, there is no basis upon which to consider the district court's denial of an evidentiary hearing.

C. Prosecutorial Misconduct under Brady

Reasserting the facts alleged as grounds for error in his Napue claim, Alix argues that the district court should be reversed for failure to find a Brady violation. Based largely on the same analysis discussed above, the district court found that Alix's Brady claims also failed. We agree. The district court's conclusion is not debatable among reasonable jurists.

Under Brady, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. “[E]vidence 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.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

The district court carefully reviewed the record and applied the appropriate legal analysis. The district court found that the prosecution did not withhold material exculpatory evidence and, even accepting Alix's assertion that the inconclusive DNA results were exculpatory, found that Alix failed to show materiality or a reasonable probability that the jury's determination would have been different. Furthermore, the district court determined that the DNA evidence linking Alix to the Ramirez murder was presented as part of a larger body of proof-including his long history of violence-that Alix posed a continued threat to society. The district court's denial of Alix's Brady claim was not contrary to established precedent or an unreasonable application of Brady.

Having found no violation warranting a COA, there are no grounds upon which to revisit the district court's denial of an evidentiary hearing.

D. Ineffective Assistance of Counsel

Alix argues that his trial counsel was ineffective, violating his constitutional rights under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Alix broadly claims that trial counsel was lazy and did not adequately investigate his defense. To illustrate the claimed deficiencies, Alix asserts that trial counsel should have pursued Dr. Van Dusen's qualifications more vigorously and should have discovered an ongoing investigation by the District Attorney into the Harris County Medical Examiner's Office much earlier in preparing his defense. Furthermore, Alix contends that trial counsel should have insisted on the testimony of District Attorney, Johnny Holmes, regarding this investigation. Alix claims that accepting as adequate the statements of a deputy prosecutor, on behalf of the District Attorney's office, was deficient representation.

The district court's finding that Alix had shown no Strickland violation is not contrary to, or an unreasonable application of, federal law. Under Strickland, a reversal of a defendant's sentence is warranted only where a petitioner has met a two-part test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. 466 U.S. at 687, 104 S.Ct. 2052. Furthermore, “[j]udicial scrutiny of counsel's performance must be highly deferential.” Id. at 689, 104 S.Ct. 2052.

In its extensive analysis of Alix's claim, the district court found that Alix failed to meet either prong of the Strickland test because counsel's performance was neither deficient nor prejudicial. The district court pointed out that trial counsel diligently prosecuted the case. Trial counsel was aware that Dr. Van Dusen did not have a Texas license and that the District Attorney was investigating the Harris County Medical Examiner's Office. Trial counsel cross-examined Dr. Van Dusen and raised the issue of the ongoing investigation. A motion to bar Dr. Van Dusen's testimony was set forth and denied. Trial counsel re-asserted the initial objections to Dr. Van Dusen's testimony throughout trial. After Dr. Van Dusen testified, counsel moved to strike his testimony, sought a mistrial, and also moved for a continuance. All motions were denied. Having found no deficient representation, the district court also found no prejudice. Given the highly deferential standard applied to review of counsel's performance and the district court's thorough review of the record, the district court's application of Strickland is a reasonable application of settled federal law.

As discussed above, when no COA is granted on a matter, the issuance of an evidentiary hearing on that issue is also foreclosed. In any event, Alix did not seek an evidentiary hearing on his Strickland claim from the district court and the matter is therefore waived. See Lewis, 272 Fed.Appx. at 351-52.

CONCLUSION