Thursday, April 15, 2010
Media Advisory: William Berkley scheduled for execution

AUSTIN – Texas Attorney Greg Abbott offers the following information about William Josef Berkley, who is scheduled to be executed after 6 p.m. on Thursday, April 22, 2010. Berkley was sentenced to death for the 2000 kidnapping and murder of an El Paso woman.

FACTS OF THE CRIME

Eighteen-year-old Sophia Martinez left her El Paso home at about ten p.m. on March 10, 2000, to meet a blind date. About twenty minutes later, bank ATM security cameras near Sophia's home recorded a man with a handgun approach Sophia’s car and fire a shot into the vehicle, after Sophia made a twenty dollar ATM withdrawal from her account. The security cameras next recorded the man get into the rear seat of the driver’s side of the vehicle and a bloody-faced Sophia making a second withdrawal from her account, this time in the amount of two hundred dollars. Sophia’s vehicle then left.

The following morning, Sophia’s abandoned vehicle was located by New Mexico State Police in the desert not far from El Paso. There were numerous blood stains inside the vehicle. Later the same date, El Paso police found Sophia’s lifeless body by a dirt road in an isolated location near a well. An autopsy revealed Sophia had been shot five times in the face and head and that Berkley’s semen was found in Martinez’s body.

Berkley became a suspect in Martinez’s murder in September 2000, when a woman contacted the police and implicated both Berkley and her husband. The woman reported finding a set of unfamiliar car keys and Sophia Martinez’s driver’s license on the kitchen counter of the apartment where she and her husband lived. Berkley burned the driver’s license on a grill. When the woman later saw a newspaper report of Martinez’s murder, she recognized Martinez from the driver’s license.

On October 1, 2000, Berkley was living with his parents. A police search of their home that day produced a black “beanie” hat that was identical to the one seen on the man in the ATM surveillance video. The police also recovered a .22 caliber revolver from the night stand in Berkley’s father’s bedroom, latex gloves in Berkley’s bedroom at his parents’ house, and Martinez’s car keys from the roof of the apartment complex where the woman who implicated Berkley lived. Berkley was arrested, and confessed in writing on October 1, 2000.

Two days after Berkley gave his first written statement, Berkley’s father notified police that Berkley wished to make another statement. In his second, far more detailed, written statement, Berkley added that the murder weapon was a .22 caliber handgun he had secretly taken from his father and that he later burned “the girl's” driver's license in a barbeque grill.

In his defense, Berkley’s father testified that he recognized Martinez as a girl his son had introduced to him and dated for a short period of time. However, neither of Berkley’s confessions included any indication Berkley knew his victim. Finally, Sophia's mother testified she was very close to Sophia, that she had never heard of Berkley before Sophia's murder, and that she was not aware of Sophia ever having dated Berkley.

PROCEDURAL HISTORY

• Berkley was convicted and sentenced to death in April 2002 by an El Paso County jury for the capital murder of Sophia Martinez.

• The Texas Court of Criminal Appeals affirmed his conviction and sentence on direct appeal, and the Supreme Court denied certiorari review of this decision on December 12, 2005.

• The Texas Court of Criminal Appeals also denied state habeas corpus relief on March 8, 2006.

• The federal district court denied his federal petition for writ of habeas corpus on August 24, 2007.

• The United States Court of Appeals For The Fifth Circuit also denied a certificate of appealability on February 18, 2009., and the Supreme Court denied certiorari review of that decision on October 5, 2009.

• Berkley filed a pro se motion, caption "Notice of Agreed Interlocutory Appeal" in the trial court, in which he seeks to appeal the earlier dismissal of his double jeopardy claim.

• On April 8, 2010, the trial court denied Berkley's pro se motion to dispense with judgment and execution of judgment.

• Berkley's attorneys filed a successive writ on April 12, 2010, raising one claim regarding the bullet-lead analysis test. The State filed an opposition.

• On April 13, 2010, Berkley filed a successive writ in the Texas Court of Criminal Appeals.

PRIOR CRIMINAL HISTORY

Berkley has no prior criminal record. However, at punishment, the State presented significant evidence regarding his bad character and violent past:

A former supervisor testified that she repeatedly counseled Berkley regarding his poor attendance, rude behavior with customers, and fighting with co-workers during the few months he worked under her but Berkley was non-responsive to her counseling. Berkley had a bad reputation for being peaceful among his co-workers.

A former co-worker who had known Berkley since he was twelve years old testified Berkley was perpetually disrespectful to his co-workers, mother and elders, and frequently carried a knife.

Testimony indicated that Berkley often spoke ethnic slurs and made verbal threats against a female Asian co-worker, indicating that “he wanted to smash her face.” This co-worker was afraid of him.

A former employer testified about an incident in which Berkley was caught stealing food from his employer, confessed to the theft, and agreed to pay back the value of the food.

A former girlfriend testified about numerous incidents in which Berkley behaved violently toward her and others, including an instance in which Berkley choked her until she lost consciousness, and threatened to kill her.

Berkley often bragged or joked about violent episodes. Several witnesses attested that Berkley bragged about beating a man with a brick because the man owed him money. After beating the man, Berkley pulled his knife on a friend who asked what had happened. Berkley then put the knife blade in his friend’s nose, cut his nose, and told him “He didn’t see nothing.” Berkley also bragged about stabbing a girlfriend with a fork. On another occasion, when Berkley became angry after spilling gasoline on himself, he stated that the “best way to relieve the anger is to unload a clip in somebody’s head.” Berkley was referring to shooting someone in the head until no more bullets remain in the gun. Berkley also told a friend that his nickname was “Little Capper,” which meant “Little Killer.” Berkley told the same friend that he had pushed a teacher while in school. Berkley told another friend that he was suspended from school for striking a girl in the nose. When Berkley was twelve, because he was upset about a basketball game, he punched the glass out of a door.

Several witnesses had seen Berkley take drugs, or had seen him under the influence of drugs. Berkley was known to use marijuana and cocaine.

An FBI agent testified about numerous letters Berkley sent to one of his girlfriends from jail, while awaiting trial for Martinez’s murder, in which made repeated professions of his love for the young woman but also included negative, crude, and threatening references toward his own mother.

Texas Execution Information Center by David Carson.

William Josef Berkley, 31, was executed by lethal injection on 22 April 2010 in Huntsville, Texas for the abduction, rape, robbery, and murder of an 18-year-old woman.

At about 10 p.m. on Friday, 10 March 2000, Sophia Martinez left her home in El Paso to meet a blind date. At 10:20 p.m., she withdrew $20 from an automated teller machine at a bank near her home. While she was at the machine, Berkley, then 21, approached Martinez's car with a handgun and fired a shot into it. He then got into the rear seat behind Martinez and forced her to withdraw another $200 from her account. He then had her drive out to an isolated location near a well, where he raped her and shot her in the face, killing her. Berkley left the victim's body by the roadside. He then drove her car out into the New Mexico desert and abandoned it there.

New Mexico state police found the abandoned vehicle the next morning and discovered blood stains inside it. El Paso police found the body. An autopsy showed Martinez was shot five times in the face and head. A semen sample was collected from her body.

Bank security cameras recorded Martinez's robbery and abduction by an unidentified gunman wearing a black beanie cap.

The investigation went unsolved until September 2000, when Heather Napawoki contacted the police and reported that after the murder, she found an unfamiliar driver's license and set of car keys on the kitchen counter of her apartment. When she later saw a newspaper report of Martinez's murder, she recognized that the driver's license belonged to her. The woman implicated her estranged husband, Michael Jacques, 24, who was in jail at the time on charges that he beat her. Jacques, in turn, implicated Berkley.

Police arrested Berkley on 1 October 2000. A search of his parents' home, where he also lived, produced a black beanie cap matching the one in the bank security video. Police also found latex gloves in his bedroom and a .22-caliber revolver in his father's nightstand. Martinez's car keys were found on the roof of the apartment complex where Berkley and Jacques lived at the time of the murder. Berkley's DNA was matched to the semen sample taken from the victim's body.

Berkley gave a written confession at the time of his arrest. He stated that he approached Martinez's vehicle at the ATM with a gun. As he approached the car, the gun "went off". He then directed Martinez to withdraw $200 and drive away. Once they arrived at the secluded location, she initiated sexual intercourse with him. While they were having sex, his gun "went off" again. He passed out. When he awoke the woman was lying on the ground. He then panicked and drove her car away, then abandoned it and walked home.

Two days later, Berkley told police he wanted to amend his confession. He confessed that the murder weapon was a .22-caliber handgun he had secretly taken from his father. He also stated that he later burned the victim's driver's license in a barbecue grill and that Michael Jacques helped him in the planning and execution of the robbery and the disposal of the victim's car.

At his trial, Berkley pleaded not guilty and did not acknowledge any involvement in the crime. Regarding the DNA findings, his father testified that William had dated Martinez and once introduced her to him. In response, Martinez's mother testified that she knew the boys her daughter had relationships with, and she had never heard of Berkley until he was arrested.

Berkley had no prior criminal record, but several people testified about his violent nature. A former girlfriend testified that he once choked her to unconsciousness and threatened to kill her. Others testified that he bragged about occasions where he beat, stabbed, cut, or pushed people.Two of Berkley's friends testified, however, that many of his boasts were lies.

A jury convicted Berkley of capital murder in April 2002 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in April 2005. All of his subsequent appeals in state and federal court were denied.

According to an Associated Press article, Michael Angelo Jacques was sentenced to life in prison for planning the robbery and hiding evidence.

While on death row, Berkley maintained his innocence. "I'm not exactly sure what happened," he told a reporter shortly before his execution. "I wasn't there." He said he and Michael Jacques had planned to commit a robbery the night Martinez was killed, but their plans got sidetracked when he was hitchhiking and "got picked up by four girls" and went off with them. "I screwed up and signed two confessions," he said in another interview. "But I could not read what I was signing, because I did not have my glasses. I was told that the stuff I was signing was to get the attorney I requested present."

He said he had consensual sex with Martinez, having dated her for several months. "She was a cool chick," he said. The victim's sister, MaryAnn Martinez, called Berkley's declaration "absolutely ridiculous." "We knew who she would date," she said. "There was no reason she would hide it."

Berkley tried to raise money for his legal defense by selling paintings. Some of his artwork was recently displayed at the El Paso Museum of Art.

Berkley's girlfriend, his attorney, and his spiritual advisor watched his execution from a viewing room. In another room were the victim's mother and two sisters and the El Paso district attorney. Berkley expressed love to his witnesses in his last statement. He did not acknowledge his crime or the victim's witnesses. "Warden, let her rip," he concluded. The lethal injection was then started. He was pronounced dead at 6:18 p.m.

El Paso Times

"William Josef Berkley is executed, did not address Martinez's family," by Adriana M. Chávez. (Posted: 04/22/2010 03:45:43 PM MDT)

HUNTSVILLE -- William Josef Berkley was executed today in Huntsville. He was pronounced dead at 5:18 p.m.

Berkley addressed his last words to his girlfriend, Samantha Ann Gray; his lawyer, Cori Harbour, and Irene Wilcox, his spiritual advisor. The three were Berkley's personal witnesses at the execution. "Samantha, I love you with all my heart and soul," Berkley said in his final words. "Cori, thanks for everything. Make sure my princess is alright. Death before dishonor. Cori, I think you should continue with criminal law. It¹s your decision. They need lawyers out there that will fight. Death before dishonor. Warden, let her rip. Thank you for coming, Irene." Berkley did not address Martinez's family. Sophia's mother, Lourdes Licerio, and Sophia's two sisters, Dulce Enriquez and MaryAnn Martinez watched the execution.

The first dose of drugs was administered to Berkley at 5:09, ending at 5:13 p.m. After the first injection, Berkley gave a loud swallow. He had his eyes closed. At one point, he opened them, made a loud snoring sound, then closed his eyes again. A priest was standing near his feet, praying. After an official checked Berkley's vital signs, then moved the white sheet over his face, Gray began bawling as Wilcox attempted to comfort her.

About 4 p.m. today, the U.S. Supreme Court turned down Berkley's final appeal.

Berkley was executed for killing 18-year-old Sophia Martinez. Jurors convicted and sentenced Berkley in 2002 for Martinez's murder. He shot and robbed her in March 2000 at an East Side ATM, took her to the Northeast desert, raped her and shot her again. Martinez was a senior at Burges High School who dreamed of becoming a history teacher.

After the execution, MaryAnn Martinez read a statement. The family did not take questions. "Sophia was our flesh and blood, our beloved," MaryAnn Martinez said. "The night she was murdered she had no fanfare, no witnesses, no chaplain, no last meal. Today is not about revenge. Today is not about closure. Today is not about anyone else other than my sister."

District Attorney Jaime Esparza viewed the execution -- the second in his career. Last year, he witnessed the execution of El Pasoan Ricardo Ortiz, who was convicted of injecting Gerardo Garcia with a triple dose of heroin in 1997 to keep Garcia from testifying against him about bank robberies the two had committed.

The following is a rough timeline of Berkley's final day after speaking to the media on Wednesday, according to prison officials:

At 5:15 p.m. Wednesday, he was going through his property.
At 8:15 p.m., he was writing a letter.
At 11:45 p.m., he was walking around his cell.
At midnight, he was cleaning his cell.
At 3:15 a.m. today, he was sleeping.
At 6:35 a.m., he was showering.
At 7:57 a.m,, he was taken to the visitation area.
At noon, visitation was ended, and he was taken to Huntsville.
Berkley had his final meal at 3 p.m.

His final meal was two BLT cheeseburgers, two jalapeño cheeseburgers, fried okra, french fries with ketchup and mustard, brownies, chocolate and vanilla ice cream, and three root beers, said Michelle Lyons, spokeswoman for the Texas Department of Criminal Justice.

Two prison chaplains, Daniel Rose and David Collier, also witnessed the execution.

Berkley was the sixth Texas inmate to receive lethal injection this year.

Houston Chronicle

"Inmate executed for killing and raping El Paso teen," by Juan A. Lozano. (April 22, 2010, 7:06PM)

HUNTSVILLE — A Texas inmate convicted of fatally shooting an El Paso high school senior after robbing and sexually assaulting her was executed Thursday evening in the nation's busiest death penalty state. William Josef Berkley was condemned to death for the March 2000 slaying of 18-year-old Sophia Martinez, whose body was found in the desert outside El Paso after being robbed at a drive-through ATM. She had been shot in the head five times and there was evidence she'd been raped. Berkley was the sixth Texas inmate to receive lethal injection this year. Ten other prisoners are set to die over the next three months.

As the drugs took effect, he gasped at least twice. Nine minutes later, at 6:18 p.m. CDT, he was pronounced dead.

Martinez was robbed after pulling up to a drive-through ATM to withdraw $20 for spending on a Friday night. A surveillance camera caught the robbery on tape and showed a man prosecutors said was Berkley forcing his way into Martinez's car. After being forced to withdraw $200 from the ATM, Martinez drove off with Berkley. Two days later, Martinez's body was found in the desert about 10 miles away.

Berkley, who dropped out of high school in 10th grade, was born in Germany, where his father was posted with the U.S. Army. His family moved to El Paso when he was in the fourth grade. Berkley said he had dual citizenship with Germany. The German government didn't step in to intervene in the case.

Scheduled next for the Texas death chamber is Samuel Bustamante, 40, facing execution Tuesday for the fatal stabbing of a 28-year-old man during a robbery in Fort Bend County.

Huntsville Item

"Texas executes man convicted of killing student." (Associated Press April 22, 2010)

William Josef Berkley was condemned to death for the March 2000 slaying of 18-year-old Sophia Martinez, whose body was found in the desert outside El Paso after being robbed at a drive-through ATM. She had been shot in the head five times and there was evidence she’d been raped. Berkley was the sixth Texas inmate to receive lethal injection this year. Ten other prisoners are set to die over the next three months.

During his final statement, Berkley did not mention Martinez nor look at or speak to the mother and two sisters of the victim. In an interview with The Associated Press before his execution, Berkley denied killing Martinez. In his brief statement, Berkley thanked his girlfriend, a friend and his spiritual adviser, who were at the execution, for their love and support. “Warden, let her rip,” Berkley said, just before the lethal injection was administered. As the drugs took effect, he gasped at least twice. Nine minutes later, at 6:18 p.m. CDT, he was pronounced dead.

In a statement, MaryAnn Martinez, the victim’s sister, said she and her family attended the execution so that their loved one wasn’t forgotten. “Today is not about revenge. That’s not in our hands,” MaryAnn Martinez told reporters after the execution. “Today is not about closure. Making peace with her death and absence only comes from God. Today is not about anyone else other than Sophia.”

The U.S. Supreme Court turned down Berkley’s appeal late Thursday. The high court last year refused to review his case. On Wednesday, the 5th U.S. Circuit Court of Appeals rejected his appeal.

Martinez was robbed after pulling up to a drive-through ATM to withdraw $20 for spending on a Friday night. A surveillance camera caught the robbery on tape and showed a man prosecutors said was Berkley forcing his way into Martinez’s car. After being forced to withdraw $200 from the ATM, Martinez drove off with Berkley. Two days later, Martinez’s body was found in the desert about 10 miles away. As an alibi, Berkley said he and a friend, Michael Angelo Jacques, were going to break into a home to steal some cocaine the night Martinez was killed when that plan got sidetracked and Berkley “got picked up by four girls” and went off with them. But Berkley said he didn’t know the women’s last names. Jacques, accused of planning the robbery and hiding evidence, now is serving life in prison.

But Jaime Esparza, the El Paso district attorney who prosecuted Berkley, said there was plenty of evidence the condemned inmate killed Martinez, including a signed confession where he admitted shooting the teenager. “His guilt really was overwhelming,” said Esparza, who also attended the execution.

The jury was shown a photo from the surveillance camera that prosecutors said was Berkley.

Frank Macias, Berkley’s lawyer at his 2002 trial, said the photo was “a bad picture” but was “difficult to refute.” In addition to the photo, prosecutors had DNA evidence showing Berkley had sex with Martinez.

Berkley insisted the sex was consensual because he and Martinez had been friends for several months. Esparza said there was no evidence indicating Martinez knew him. MaryAnn Martinez called Berkley’s declaration “absolutely ridiculous.”

Berkley, a self-described marijuana-smoking, baggy-jeans-wearing, “sarcastic smart ass,” was born in Germany, where his father was posted with the U.S. Army. His family moved to El Paso when he was in the fourth grade. He dropped out of high school in 10th grade. Berkley said he had dual citizenship with Germany. The German government didn’t step in to intervene in the case.

Scheduled next for the Texas death chamber is Samuel Bustamante, 40, facing execution Tuesday for the fatal stabbing of a 28-year-old man during a robbery in Fort Bend County, southwest of Houston.

ProDeathPenalty.Com

On the evening of Friday, March 10, 2000, 18-year-old Sophia Martinez left her house in her red 2000 Grand Am GTS around 10:15 p.m. on her way to a nightclub in El Paso. The next morning, her sister Mary Ann went to wake her for work but Sophia was not in her room. Mary Ann thought that Sophia had gotten up early and already left the house. When she received a call around 10:30 or 11 a.m. advising her that Sophia had not shown up for work, Mary Ann began making calls and trying to locate her sister. The New Mexico State Police then called to report that her sister’s car had been found but Sophia was missing. Her body was found the next day.

Officer Leticia Olivas of the El Paso Police Department was one of the crime scene technicians assigned to the murder case. On March 12, she went to the desert area off Junction 404 and O’Hara Road in New Mexico to recover Sophia’s car. By the time she arrived, the car had been towed but she documented and photographed the area. She observed tire impressions leading into and out of the area and tennis shoe impressions leading toward the highway. Authorities were unable to link the footprints to Michael Jaques. Olivas then went to the New Mexico State Troopers’ garage in Las Cruces where the vehicle was stored. She took interior and exterior pictures of the car. There were blood stains on the seats, the interior door panels, the steering wheel, the driver’s seat belt, and the rearview mirror. The passenger side window was shattered and broken out.

From there, Olivas headed to northeast El Paso where Sophia’s body had been located. She had been shot five times in the head and face. One wound was on the right side of the back of her head, one through the center of her right eye, one through her right cheek next to her nose, and one to her left cheek. Sophia also received a grazing wound through her left eyebrow area. The medical examiner recovered four bullets and concluded that Sophia died as a result of brain injury from multiple gunshots. A fifth bullet was found in the vicinity where the body was discovered. Sophia’s body also tested positive for sperm which was later matched to William Berkley, Jaques’s co-defendant. A toxicology report was negative for drugs and alcohol.

During their investigation, police found an ATM receipt in Sophia’s car and obtained the video surveillance tapes from the Government Employees Credit Union (GECU) on Viscount, where Sophia banked. The video showed that at 10:22:35 p.m. on March 10, Sophia approached the ATM and withdrew $20. At 10:24:05 p.m., an individual later identified as Berkley approached the passenger side of Sophia’s car with his arms extended. He pointed a pistol at Sophia at 10:24:09 p.m. and the passenger side window shattered. Berkley then moved around to the driver’s side and got into the backseat. A bleeding Sophia withdrew $200 from her account at 10:25:15 p.m. The video showed only one perpetrator; no other cars followed Sophia’s car as it left the bank.

Sophia’s murder generated a great deal of public interest and was featured on Crime Stoppers and America’s Most Wanted. A reward was offered for information in the case. On September 30, 2000, Heather Jacques, Jaques’s wife, contacted the FBI with information about Sophia’s death. By the time of trial, Heather and Jaques had divorced and she had begun using the name Heather Napiwocki. Heather received $51,000 in reward monies for coming forward with information. Police then contacted Jaques, who was in the El Paso County jail on an unrelated charge, and questioned him concerning Sophia’s murder. Jaques ultimately gave two written statements.

According to these statements, Jaques was visiting Heather at the hospital on March 10 when his friend William Berkley arrived. Heather had been hospitalized for a kidney infection, although the record is unclear as to the actual date of her admission. Jaques thought Heather had been admitted on March 7 or 8; Heather testified that she entered the hospitalon March 10. Heather needed some personal items and Jaques and Berkley went to the couple’s apartment, which at that time was number 34 at the Amberwood Apartments. The men returned to the hospital and Berkley left, but he came back around 7 p.m. Jaques told Berkley that he needed money to pay his court costs and Berkley said he would take care of it. He asked whether Jaques wanted to break into a house. They began discussing different ways of getting the money and Berkley finally suggested a hold-up at an ATM. Before leaving the hospital, Berkley stole some surgical gloves and KY jelly.

The men then drove back to the Amberwood Apartments to visit Berkley’s friend, Amanda Cepolski, who lived in apartment no. 134. Berkley talked to Amanda for ten to fifteen minutes before returning to the car. He showed Jaques a black .22 caliber revolver, a black pullover sweater, and a black beanie cap. They began driving around looking for possible hold-up locations. They considered the GECU in northeast El Paso, but Berkley thought the area was too well lit with too much traffic. They went to a grocery store on Fairbanks Street but didn’t like that scenario either. Finally, they targeted the GECU on Viscount. Here, the lighting was poor and they parked by a rock wall fence close to the street running behind the bank. From this vantage point, Jaques could clearly see the ATMs. Berkley got out to hide in the bushes and wait for a car, and Jaques moved over to the driver’s seat. Berkley donned the black sweater, beanie cap, and surgical gloves, and took the gun with him. Jaques also put on a pair of gloves. Cars were coming and going at the ATM booths. When Jaques saw a new model car pull up, he flashed the headlights. Berkley emerged from the bushes and approached the car. Jaques couldn’t see what Berkley did until he walked around to the driver’s side. The car took off, and when Berkley didn’t return, Jaques realized he had left in the red car.

Jaques drove back to the hospital around 10:45 or 11 p.m. and told his wife that Berkley had just robbed someone at an ATM. Around 2 or 2:30 a.m., a nurse came into the hospital room and told Jaques that a friend was waiting downstairs. Jaques went downstairs and met Berkley. Sophia’s car was in the parking lot and the right front passenger side window was shattered. Berkley told Jaques that he had tried to open the passenger door but it was locked. He tried to break the window with the butt of the gun but it wouldn’t break. He fired a shot, but the window only shattered. When he went around to the driver’s side, he saw that the driver had been shot in the face. Berkley told her to open the automatic locks, and he got in the backseat. As Sophia tried to drive off, Berkley put the gun to her head and told her to withdraw $200. He then instructed her to drive to a secluded desert area that Jaques and Berkley called “the spot.” When they arrived, Berkley told her to get out of the car. He shot her in the face twice, and she fell to the ground. Berkley then emptied the gun into her while she was lying on the ground.

Berkley had come back to the hospital because he needed Jaques’s help in getting rid of the car. Jaques told his wife he had to leave again. Berkley drove Sophia’s car while Jaques followed in Berkley’s car. They drove out to the junction of Chaparral and O’Hara Road and turned westbound on O’Hara. Berkley passed through a cattle fence and ended up on a dirt mound. It was very dark and difficult to see, so much so that Jaques passed by Berkley without seeing him. He turned around and kept driving, finally coming upon Berkley walking along the road. Jaques picked him up.

A few days later, Jaques and his wife were having a barbecue at their apartment. Berkley stopped by and had Sophia’s driver’s license and car keys with him. Berkley put the license on the grill to burn, and Jaques took the keys and threw them on the roof of the apartment complex. Jaques also provided information about the gun. The last time he had seen it was in May 2000. It was located at Berkley’s father’s house in the night stand by the bed. And as it turned out, Jaques’s court costs of approximately $200--the underlying reason for the robbery--were paid in $20 denominations after the murder. Based on this information, the police executed a search warrant at Berkley’s father’s home and recovered a .22 caliber eight-shot revolver in the nightstand of the master bedroom. They also recovered Sophia’s keys from the roof of one of the buildings at the Amberwood complex and located metal fragments in apartment no. 34, Jaques’s former apartment.

Douglas Richard Bosanko, who owned a wrecker and locksmith business, testified at trial that on March 10, he was called out on a business call at Graham’s Nightclub on the westside of El Paso. He left from Chaparral, New Mexico and traveled up Lisa over War Road onto O’Hara Road, then to Interstate 10 and Artcraft. As he was crossing over O’Hara Road, he saw a car twenty-five to thirty feet off the road, and the dome light came on as he was passing. Bosanko saw someone get out of the vehicle. On his way home from the call, he saw the car was still there, but he did not see anyone. At the end of the Gap and Highway 54, Bosanko saw a Hispanic male pacing back and forth over the right-hand side of the road, so he pulled over and asked if he needed help. The male answered “No, bro, everything’s cool.” The male said that he was waiting on a friend to pick him up. Bosanko saw him continue to walk along the shoulder toward El Paso. Later, Bosanko identified an individual who was not Berkley. He was also later shown two photo line-ups but he was not able to identify anyone. He did, however, positively state that Jaques was not the man he had seen.

Berkley v. Quarterman, 310 Fed.Appx. 665 (5th Cir. 2009). (Habeas)

Background: Following affirmance of conviction for capital murder and sentence of death by the Texas Court of Criminal Appeals and denial of state habeas corpus relief, petitioner filed for federal writ of habeas corpus. The United States District Court for the Western District of Texas, Montalvo, J., 507 F.Supp.2d 692, denied petition. Petitioner sought certificate of appealability (COA).

PER CURIAM:

Petitioner-Appellant William Josef Berkley (“Berkley”) was convicted and sentenced to death in 2002 for the murder of Sophia Martinez (“Martinez”). Berkley requests a Certificate of Appealability (“COA”) on five issues for which the district court denied him a COA after rejecting Berkley's petition for federal habeas corpus relief. For the reasons detailed below, we decline to grant Berkley a COA on each issue.

I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background

On March 10, 2000, a security camera recorded Martinez making a small withdrawal from an ATM at a bank near her home when a male brandishing a handgun approached her vehicle and fired a shot into her car. The male assailant got into Martinez's car and forced a bloody-faced Martinez to withdraw an additional two hundred dollars. Martinez then drove away from the ATM with the male assailant still in her vehicle.

The following day, New Mexico State Police located Martinez's vehicle near El Paso, Texas. When found, the vehicle contained numerous blood stains. The El Paso Police located Martinez's body later that day beside a dirt road in an isolated location. An autopsy revealed that Martinez had been shot five times in the head and that she had engaged in intercourse shortly before her death.

On December 19, 2000, an El Paso grand jury indicted Berkley on a single count of capital murder for Martinez's death. On April 19, 2002, a jury found Berkley guilty of capital murder, and on May 14, 2002, the trial court sentenced him to death. Berkley's conviction and sentence were affirmed on direct appeal, Berkley v. State, No. 74,336 (Tex.Crim.App. Apr. 6, 2005), and the United States Supreme Court denied his petition for certiorari, Berkley v. Texas, 546 U.S. 1077, 126 S.Ct. 828, 163 L.Ed.2d 708 (2005). The Texas Court of Criminal Appeals (“TCCA”) denied state habeas relief on March 8, 2006. Ex Parte Berkley, No. 63,079-01, 2006 WL 561467, at *1 (Tex.Crim.App. Mar. 8, 2006). The district court denied all of Berkley's claims and his request for a COA to this court on August 24, 2007. Berkley v. Quarterman, 507 F.Supp.2d 692, 753 (W.D.Tex.2007). Berkley appeals the district court's denial of his request for a COA on five grounds.

II. STANDARD OF REVIEW

For this court to have jurisdiction to rule on the merits of the appeal, Berkley must obtain a COA by making “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). “Under the controlling standard, a petitioner must sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (alteration in original and internal quotation marks omitted). “A prisoner seeking a COA must prove something more than the absence of frivolity or the existence of mere good faith on his or her part.” Id. at 338, 123 S.Ct. 1029 (internal quotation marks and citation omitted). “The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. (internal quotation marks and citation omitted). “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id.

The Supreme Court has instructed that when a district court dismisses a habeas petition on procedural grounds, “a COA should issue when the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). After noting that this is a two-part inquiry, the Court encouraged lower courts to consider the procedural issues first and dispose of any issues that are procedurally barred before considering the constitutional issues presented by the petition. Id. at 485, 120 S.Ct. 1595.

Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted. Id. at 484, 120 S.Ct. 1595. Finally, “any doubts as to whether a COA should issue must be resolved in [the petitioner's] favor.” Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir.2005) (alteration in original and internal quotation marks omitted).

III. DISCUSSION

Berkley requests COA on five issues. First, he asserts that the state trial court violated his rights when it refused to strike a venire member for cause. Second, he challenges the trial court's refusal to instruct the jury that it must agree unanimously on the specific manner in which Berkley committed capital murder. Berkley also asserts, in his third challenge to his conviction, that the trial court erred in failing to instruct the jury on the lesser-included offense of simple murder. Fourth, Berkley argues that the trial court erred by failing to instruct the jury that it must find the absence of mitigating factors beyond a reasonable doubt. Finally, in his fifth challenge to his conviction, Berkley argues that the prosecution violated his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We consider each in turn.

A. Bias of Venire Member Lucero

Berkley first argues that he was denied his Sixth and Fourteenth Amendment right to trial before a fair and impartial jury when the state trial court refused to strike venire member Albert Ernest Lucero (“Lucero”) for cause. The district court found that Berkley did not “fairly present” this claim to the state court because he did not ask the State to consider this claim on federal grounds. See Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004) (holding that “ordinarily a state prisoner does not ‘fairly present’ a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so” (emphasis added)). Accordingly, the district court found that Berkley procedurally defaulted on this federal constitutional claim. In the alternative, the district court found that the claim lacked merit.

We must first address “whether ... jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. If we conclude that the district court was correct, the inquiry ends there. Id. In his brief to this court, Berkley has not made any argument regarding the procedural bar and has waived this argument for failure to brief. See Fed. R.App. P. 28(a)(9); United States v. Lindell, 881 F.2d 1313, 1325 (5th Cir.1989). In addition, Berkley failed to meet his burden of demonstrating that it is debatable whether the district court's procedural ruling was correct. See Slack, 529 U.S. at 484, 120 S.Ct. 1595. Berkley's failure to argue the procedural bar issue is dispositive of his underlying constitutional claim. We therefore deny Berkley a COA on this issue.

B. Jury Unanimity as to a Particular Theory of Capital Murder

Berkley next argues that the state trial court violated his constitutional right to a unanimous verdict when the court refused to instruct the jury that it must agree unanimously on the specific manner in which Berkley committed capital murder (i.e., whether Martinez was murdered during the course of the commission of a specific predicate felony, namely robbery, kidnapping, or aggravated sexual assault). The district court found that the Texas court reasonably applied Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), when it rejected Berkley's challenge to his jury instructions.

Berkley argues that the Supreme Court, in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), declared that “the truth of every accusation against a defendant should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors,” id. (internal quotation marks and citation omitted). However, as Schad made clear, Berkley's claim is not one of jury unanimity, but rather a challenge to Texas's capital murder statute and the permissibility of defining “capital murder” as a crime involving murder and one of several alternate felonies. See Schad, 501 U.S. at 624, 111 S.Ct. 2491.

In Schad, the Supreme Court considered whether the jury instructions violated the petitioner's right to a unanimous verdict. 501 U.S. at 630, 111 S.Ct. 2491. Schad was convicted of first-degree murder under an Arizona statute which defined first-degree murder as: A murder which is perpetrated by means of poison or lying in wait, torture or by any other kind of wilful, deliberate or premeditated killing, or which is committed in avoiding or preventing lawful arrest or effecting an escape from legal custody, or in the perpetration of, or attempt to perpetrate, arson, rape in the first degree, robbery, burglary, kidnapping, or mayhem, or sexual molestation of a child under the age of thirteen years, is murder of the first degree. All other kinds of murder are of the second degree. Id. at 628 n. 1, 111 S.Ct. 2491 (quoting Ariz.Rev.Stat. Ann. § 13-1105.A (1989)). The jury instructions did not require the jury to make a unanimous finding on either of the available theories of premeditated murder or felony murder. Id. The Court, in Schad, first re-characterized the petitioner's claim. The Court found that the issue was more properly characterized as a challenge to Arizona's definition of first-degree murder as a single crime. Id. at 630-31, 111 S.Ct. 2491. That is, the petitioner's true contention was that “premeditated murder and felony murder are separate crimes as to which the jury must return separate verdicts.” Id. at 631, 111 S.Ct. 2491. The Court concluded that Schad's claim was “one of the permissible limits in defining criminal conduct, as reflected in the instructions to jurors applying the definitions, not one of jury unanimity.” Id.

The Court noted that, generally, its “cases reflect a long-established rule of the criminal law that an indictment need not specify which overt act, among several named, was the means by which a crime was committed.” Id. The Court recognized, however, that “there are limits on a State's authority to decide what facts are indispensable to proof of a given offense.” Id. at 633, 111 S.Ct. 2491. Rather than adopting a “single test for the level of definitional and verdict specificity permitted by the Constitution,” id. at 637, 111 S.Ct. 2491, the Court asked whether the state statute's specificity was consistent with the demands of due process and fundamental fairness and noted that rationality is an essential component of that fairness, id. Thus, the critical point is that “at which differences between means become so important that they may not reasonably be viewed as alternatives to a common end, but must be treated as differentiating what the Constitution requires to be treated as separate offenses.” Id. at 633, 111 S.Ct. 2491. Thus, in determining whether a specific statute meets these requirements, courts must look both to history and wide practice as guides to fundamental values, as well as to narrower analytical methods of testing the moral and practical equivalence of the different mental states that may satisfy the mens rea element of a single offense. The enquiry is undertaken with a threshold presumption of legislative competence to determine the appropriate relationship between means and ends in defining the elements of a crime. Id. at 637, 111 S.Ct. 2491. Thus, the Schad inquiry has two prongs: (1) whether history and current practice indicate that the statute reflects fundamental values, and (2) whether there is a moral equivalence between the two mental states that permits the statute to satisfy the mens rea element of a single offense through different mental states. Id. at 637-38, 111 S.Ct. 2491; Reed v. Quarterman, 504 F.3d 465, 481-82 (5th Cir.2007).

In Reed, we denied a COA to a petitioner's challenge to a capital murder jury instruction-which was nearly identical to the instruction Berkley received-based upon the Texas capital murder statute. 504 F.3d at 482. The capital murder jury instruction here read, “A person commits capital murder when such person intentionally causes the death of an individual in the course of committing or attempting to commit robbery, kidnapping, or aggravated sexual assault.” In Reed, the defendant challenged a jury charge which provided that a defendant was guilty of capital murder under Texas law if the defendant did then and there intentionally cause the death of the complainant in the course of committing or attempting to commit robbery of the complainant or in the course of attempting to commit aggravated rape of the complainant. Id. at 479-80. Considering the first Schad prong, we found that “numerous states have traditionally defined and continue to define first-degree or aggravated murder as including both a killing in the course of robbery and a killing in the course of rape or attempted rape.” Id. at 482. In applying the second prong of the Schad inquiry, we held that “a court could reasonably find a moral equivalence between murder in the course of robbery and murder in the course of attempted rape.” Id. at 482; accord Richardson v. United States, 526 U.S. 813, 818, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) (When the underlying offenses are but a means of proving a single element, “the jury need only agree that the defendant committed ... the underlying crimes the Government has tried to prove. The jury need not agree about which [underlying crime was committed].”); Rodriguez v. Texas, 146 S.W.3d 674, 677 (Tex.Crim.App.2004) (recognizing a moral equivalence between the various offenses that can be proven to support the “nature of conduct” element of capital murder). In Reed, we concluded that “reasonable jurists would not debate that the Texas court reasonably applied Schad when it rejected Reed's challenge to his jury instructions.” Id. at 482, 111 S.Ct. 2491.

This holding, denying a COA to a challenge to Texas's capital murder statute after finding that reasonable jurists could not dispute that Schad was properly applied, controls the instant case. Berkley's jury instruction was nearly identical to the jury instruction at issue in Reed. Accordingly, we hold that reasonable jurists could not debate that the district court correctly concluded that the Texas court properly applied Schad to this case. We therefore deny Berkley a COA on this issue.

C. Lesser-Included Offense Instruction on Simple Murder

In his third claim for relief, Berkley asserts that the trial court erred in failing to instruct the jury on the lesser-included offense of simple murder, and that this omission is reversible error under Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Before proceeding to the merits of Berkley's claims, however, we must first consider whether Berkley has failed to exhaust this claim or is otherwise procedurally barred from raising the claim before this court. Cf. Slack, 529 U.S. at 485, 120 S.Ct. 1595. Berkley's petition fails due to two procedural bars to his claim: (1) Berkley failed to exhaust his state court remedies, and (2) Berkley has procedurally defaulted on his claim by failing to comply with state procedural rules.

Berkley failed to request a lesser-included-offense instruction during the guilt-innocence phase of his trial. He also did not challenge the failure to include the instruction during either his direct appeal or in his state habeas proceedings. Berkley candidly admits that this claim is unexhausted, but he argues on federal habeas review that the futility exception to the exhaustion requirement should excuse his failure to exhaust this issue in state court. The district court rejected Berkley's futility argument and held that it was “statutorily precluded” from granting federal habeas relief on Berkley's lesser-included offense claim because the claim was unexhausted.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, requires that federal habeas petitioners “exhaust [ ] the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). “The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court.” Morris v. Dretke, 413 F.3d 484, 491 (5th Cir.2005) (internal quotation marks and citation omitted). A federal habeas petitioner seeking review from a Texas state law conviction must have presented his claims to the TCCA. See Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir.1985). Lack of exhaustion may be excused, however, if he can demonstrate that the presentation of the claims to the state court “would be plainly futile.” Morris, 413 F.3d at 492 (quoting Graham v. Johnson, 94 F.3d 958, 969 (5th Cir.1996)).

In Fisher v. Texas, 169 F.3d 295 (5th Cir.1999), we held that “the exhaustion requirement may be excused when seeking a remedy in state court would be futile,” id. at 303. “The futility exception applies when ... the highest state court has recently decided the same legal question adversely to the petitioner.” Id. In Fisher, we considered whether it would have been “futile” for a federal habeas petitioner to have argued to the state court a Batson claim premised on the exclusion of venire members based on their religious affiliation after the state court had rejected the merits of precisely such a constitutional claim. Id. We held in favor of the petitioner and considered the claim despite the petitioner's failure to present it first to the state court. Id. Thus, this court has recognized a futility exception when the highest state court has recently rejected a federal claim on the merits.

Unlike the petitioner in Fisher-in which a state court had rejected the petitioner's challenge to federal law on the merits-Berkley asks this court to apply the futility exception to excuse his failure to challenge a state's procedural law in state court. At trial, Berkley failed to object to the jury instructions; and under Texas' contemporaneous objection rule, this failure to object procedurally bars Berkley from pursuing this issue on appeal in state court. We have held repeatedly that “ ‘[t]he Texas contemporaneous objection rule is strictly or regularly applied evenhandedly to the vast majority of similar claims, and is therefore an adequate [state] procedural bar.’ ” Turner v. Quarterman, 481 F.3d 292, 301 (5th Cir.2007) (quoting Dowthitt v. Johnson, 230 F.3d 733, 752 (5th Cir.2000)). As such, the contemporaneous objection rule “is an independent and adequate state ground for decision, precluding federal review.” Id. at 300. Berkley never challenged this procedural bar in state court because, as he asserts, this challenge would have been futile because the TCCA had previously dismissed a challenge to a petitioner's conviction in a similar case. See Kinnamon v. Texas, 791 S.W.2d 84, 96 (Tex.Crim.App.1990) (en banc) (holding that the defendant's failure to request a jury instruction on the lesser-included offense of simple murder constituted a waiver of the objection), overruled on other grounds by Cook v. Texas, 884 S.W.2d 485 (Tex.Crim.App.1994). However, this court has not yet addressed, much less recognized, a futility exception when the state court's decision rests upon a long-standing procedural rule that is an independent and adequate state law ground for denying recovery.

To do so here would deprive the state court the opportunity to address state law in the first instance and ignore the basic principles behind the exhaustion requirement. The exhaustion requirement “is grounded in concerns of comity and federalism.” Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). It provides state courts the opportunity to address federal law in the first instance. Most importantly for our purposes, the exhaustion requirement also allows state courts to be the primary adjudicators of state law. Id. Thus, the doctrine is especially important when the state court review that the petitioner seeks to avoid is premised upon “ ‘a state law ground that is independent of the federal question and adequate to support the judgment.’ ” Rosales v. Dretke, 444 F.3d 703, 707 (5th Cir.2006) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). Applying the futility exception to excuse a petitioner's failure to challenge a state procedural rule would subvert state court procedural rules and undermine the principles of finality, comity, and federalism underpinning our general requirement that a federal habeas petitioner must first present the substance of her challenge to the highest state court.

Thus, the futility exception does not apply to excuse a petitioner's failure to challenge in state court a state procedural rule that would be an independent and adequate ground to support the judgment. Because reasonable jurists would not debate that the district court correctly concluded that this exception is not available to excuse Berkley's failure to make a contemporaneous objection to his jury instructions, we must deny Berkley a COA on this issue.

Even assuming that the futility exception applies to excuse Berkley's failure to exhaust, Berkley would still be barred by the procedural default doctrine. The procedural default doctrine is distinct from, though related to, the exhaustion doctrine. “A habeas petitioner who has [procedurally] defaulted his federal claims in state court [due to a state procedural rule] meets the technical requirements for exhaustion.” Coleman v. Thompson, 501 U.S. at 732, 111 S.Ct. 2546. However, “there are no state remedies any longer ‘available’ to him” because he has procedurally defaulted on those claims. Id. (citations omitted). “ ‘Under the procedural default doctrine, a federal court may not consider a state prisoner's federal habeas claim when the [S]tate based its rejection of that claim on an adequate and independent state ground.’ ” Coleman v. Quarterman, 456 F.3d 537, 542 (5th Cir.2006) (internal quotation marks and citations omitted). Even though the TCCA never considered Berkley's challenge to his jury instructions, the “State need not explicitly apply [a] procedural bar ‘if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred [under state law].’ ” Beazley v. Johnson, 242 F.3d 248, 264 (5th Cir.2001) (quoting Coleman v. Thompson, 501 U.S. at 735 n. 1, 111 S.Ct. 2546). Because the contemporaneous objection rule is an independent and adequate state ground for decision, see Turner, 481 F.3d at 300, Berkley has procedurally defaulted this claim absent a demonstration of “cause for the default and actual prejudice as a result of the alleged violation of federal law,” Ogan v. Cockrell, 297 F.3d 349, 356 (5th Cir.2002). See Rowell v. Dretke, 398 F.3d 370, 375 (5th Cir.2005) (recognizing that Fifth Circuit case law forecloses review of challenges to a jury instruction to which a petitioner did not contemporaneously object absent a finding of cause and actual prejudice). Berkley concedes that the contemporaneous objection rule would have barred his claim in Texas state court and makes no argument that cause and prejudice exist to overcome the procedural default.

Because Berkley's claims are both unexhausted and procedurally defaulted, we deny Berkley a COA on this issue.

D. Burden of Proof on the Issue of Mitigation

In his fourth claim, Berkley asserts that his Sixth and Fourteenth Amendment rights were violated when the trial court failed to instruct the jury that it must find the absence of mitigating factors beyond a reasonable doubt. Berkley relies upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), for his contention that any findings of facts that increase a defendant's punishment must be found by a jury beyond a reasonable doubt.

This court has rejected this same argument on at least three occasions. In Granados v. Quarterman, 455 F.3d 529 (5th Cir.2006), we considered whether the Texas mitigation issue was “constitutionally flawed in that it does not require the State to prove beyond a reasonable doubt the absence of mitigating circumstances,” id. at 536. We recognized that Texas requires all elements of capital murder to be proved beyond a reasonable doubt, including all factual findings that were prerequisites to the imposition of the death penalty. Id. The court found that the State did not violate either Apprendi or Ring “by not asking the jury to find an absence of mitigating circumstances beyond a reasonable doubt in addition to questions it required the jury to answer,” id., because a “finding of mitigating circumstances reduces a sentence from death, rather than increasing it to death,” id. at 537.

Applying the holding in Granados, we denied the petitioners in Scheanette v. Quarterman, 482 F.3d 815, 828-29 (5th Cir.2007), and Ortiz v. Quarterman, 504 F.3d 492, 504-05 (5th Cir.2007), a COA on the very question presented here. In both cases, we found that reasonable jurists would not debate the dismissal of the defendant's claim. See Ortiz, 504 F.3d at 505; Scheanette, 482 F.3d at 829.

Accordingly, we once again hold that reasonable jurists could not debate the propriety of the district court's dismissal. The “Texas death penalty scheme does not violate Apprendi or Ring by failing to require the State to prove beyond a reasonable doubt the absence of mitigating circumstances.” Ortiz, 504 F.3d at 505. We therefore deny Berkley a COA on this issue.

E. Brady Claims

In Berkley's fifth and final claim, he argues that the prosecution violated his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by withholding: (1) the photo array containing a picture of Martinez's ex-boyfriend, Jose Hernandez (“Hernandez”), that was provided to witness Douglas Bosanko (“Bosanko”), and (2) information regarding Hernandez's then-pending indictment for leaving the scene of an accident. Berkley contends that the two pieces of withheld evidence would have shown that Hernandez was involved in Martinez's murder. Specifically, he asserts that he would have used the photo array to bolster Bosanko's credibility, and that he would have used the pending indictment to challenge Hernandez's credibility on cross-examination.

Under Brady, the government may not withhold evidence that is favorable to a criminal defendant. United States v. Walters, 351 F.3d 159, 169 (5th Cir.2003). “To establish a Brady violation, a defendant must show that (1) the prosecution suppressed evidence; (2) the evidence was favorable, such as exculpatory or impeachment evidence; and (3) the evidence was material.” United States v. Skilling, 554 F.3d 529, 574 (5th Cir.2009) (citing Mahler v. Kaylo, 537 F.3d 494, 499-500 (5th Cir.2008)). “Where a defendant fails to establish any one element of Brady, we need not inquire into the other components.” Id. at 574. Like the district court, we assume that Berkley has met the first two elements of Brady, and thus confine ourselves solely to determining whether the suppressed evidence was material.

The third element-materiality-“ ‘is generally the most difficult to prove.’ ” Id. (quoting Mahler, 537 F.3d at 500). “In assessing materiality, we must determine whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. (internal quotation marks and citations omitted). To determine materiality, we must consider the four guideposts outlined by the Supreme Court:

First, materiality does not require the defendant to demonstrate by a preponderance of the evidence that omitted evidence would have resulted in acquittal. Second, he need not weigh the withheld evidence against the disclosed evidence to show he would have been acquitted by the resulting totality. Third, if evidence is found material, there is no need to conduct a harmless error analysis. Fourth, the withheld evidence should be considered as a whole, not item-by-item. Id. at 574-75 (quoting DiLosa v. Cain, 279 F.3d 259, 263 (5th Cir.2002)). This court has held that “[t]he sum of these four guideposts means that to show a due process violation when the [S]tate withholds evidence, a defendant need not prove that his trial necessarily would have had a different outcome; a lack of faith in the result is sufficient.” Id. (alteration in original, internal quotation marks and citation omitted). Finally, “materiality depends largely on the value of the suppressed evidence relative to evidence that the government disclosed.” Id. (citing United States v. Sipe, 388 F.3d 471, 478 (5th Cir.2004)).

Berkley first asserts that the State violated Brady by failing to turn over a photo array that the police showed to defense witness Bosanko. The context of Bosanko's testimony, however, reveals that the suppressed photo array was immaterial. The jury heard evidence that Hernandez was at the scene of the crime when Martinez was killed. The defense called Bosanko, the owner of a wrecker and locksmith company, who testified that on the night of Martinez's murder he observed an unidentified person get out of a vehicle, similar to Martinez's vehicle, about twenty-five to thirty feet off of the highway. Sixty to eighty minutes later, Bosanko passed the same stretch of highway, but this time noted that the vehicle appeared abandoned. Continuing down the highway three to four miles, he observed a Hispanic male, with the same build as the man near the vehicle, pacing back and forth. Bosanko stopped to see if the man needed a ride. The Hispanic man said he was waiting for a friend to give him a lift so Bosanko left him on the highway.

Upon learning of Martinez's murder, Bosanko contacted the police department. He testified that the police made a composite sketch based upon his descriptions of the Hispanic male. Later, the police visited Bosanko at his home and showed him a photo array that included Hernandez's photo. According to the written reports of the detectives and the testimony of El Paso Police Detective Jesus Pantoja, Jr. (“Det.Pantoja”), Bosanko was unable to identify anyone from the photo array. The defense received copies of these reports, but the actual photo array was not provided to the defense until after the jury had begun its deliberations.

Berkley has provided no argument suggesting how the photo array would have been beneficial to his case. He received copies of the detectives' reports that indicated that Bosanko had failed to identify anyone in the photo array. The jury was aware that the photo array existed and heard testimony from Bosanko that he was unable to identify anyone in the array. Most critically, Bosanko told the jury that he identified a man other than Berkley at the scene of the crime at approximately the time Martinez was murdered. Finally, the jury heard evidence that Bosanko later identified Hernandez in a one-on-one line-up at the police station. The jury was thus well aware of Bosanko's testimony placing Hernandez at the scene of the crime at the time that Martinez was killed. Thus, the actual photo array would have provided no additional value at trial, and Berkley fails to make any plausible suggestion to the contrary.

Berkley also contends that the State violated Brady by failing to disclose that Hernandez, a State rebuttal witness, was under indictment for leaving the scene of an accident. Hernandez was called to testify after a dispute arose regarding whether Bosanko identified him in a one-on-one line-up that the police conducted after Bosanko failed to identify anyone in the photo array. Bosanko testified that he identified Hernandez in the line-up as the man he had spoken with on the side of the highway the night of Martinez's murder. In addition, Bosanko testified that he positively identified the voice of the man in the one-on-one line-up. In rebuttal of this testimony, the State called Det. Pantoja, who testified that Bosanko did not positively identify Hernandez. The State then called Hernandez, who testified that he participated in the line-up and that the police told him that he had been identified, but that he did not believe them. He further testified that he was at home with his girlfriend and his parents at the time that Martinez was killed and that he did not kill Martinez.

Berkley contends that had his trial counsel been aware of the pending charges, they would have shown Hernandez's testimony to be tainted by “bias, prejudice, and motive.” United States v. Collins, 472 F.2d 1017, 1019 (5th Cir.1972) (holding that “evidence of pending charges is admissible for the purpose of showing bias, prejudice, and motive of a witness”). Even assuming that evidence of his pending indictment would have been admissible as impeachment evidence, see United States v. Abadie, 879 F.2d 1260, 1266-67 (5th Cir.1989), Berkley has failed to make out a Brady violation.

There is not a reasonable probability that the jury would have returned a different verdict based upon this evidence. Additional evidence suggesting that Hernandez's testimony was biased would not have lessened the impact of the overwhelming evidence of Berkley's guilt. Berkley provided a two-page written statement in which he confessed that he had approached Martinez's vehicle at the ATM. He further stated that his gun went off as he approached her, and that he then directed her to withdraw $200 and drive away from the ATM to a deserted area. Berkley stated that once they arrived at that location, “the girl” initiated multiple episodes of sexual relations; and that during one of those encounters, his gun “went off.” He confessed that he passed out and that when he awoke the woman was lying on the ground. He stated that he “freaked out” and drove her car to another part of the desert where he drove it off the road and walked home.

Two days after giving his first statement, Berkley provided a second statement in which he confessed that the murder weapon was a .22 caliber handgun that he had taken from his father, that his close friend Michael Jacques (“Jacques”) had helped in the planning and execution of the robbery and the disposal of Martinez's car, and that he burned Martinez's driver's license in a barbeque grill.

The jury heard testimony from Jacques's estranged wife that she observed a set of car keys and a driver's license belonging to Martinez in her kitchen and that Martinez's driver's license was later burned in a barbeque grill. An El Paso Police officer confirmed her testimony, testifying that Martinez's car keys were discovered on the roof of the apartment building where Jacques and Berkley had resided in March, 2000. In addition, the prosecution presented evidence that police had discovered a .22 caliber handgun and ammunition inside a night-stand drawer in Berkley's parents' master bedroom. Finally, the jury heard testimony that Berkley's DNA matched the sperm fraction recovered from Martinez's vaginal swabs.

Cumulatively, the suppressed evidence does not undermine our confidence in the verdict. At most, the photo array and the pending indictment would have supported the defense's theory that Hernandez participated in Martinez's murder. However, the strongest evidence supporting that theory, Bosanko's testimony, was provided to the jury. There is not a reasonable probability that the jury would have returned a different verdict based upon the suppressed evidence given the overwhelming evidence of Berkley's guilt before it. Accordingly, we hold that reasonable jurists would not debate that the Texas courts and the district court correctly concluded that the suppressed evidence was not material. We therefore deny Berkley a COA on this issue.

IV. CONCLUSION

For the reasons stated above, we find that reasonable jurists could not debate the merits of any of Berkley's claims and DENY Berkley's Application for a Certificate of Appealability.