Houston Chronicle

"Convict executed for slayings of parents, uncle," by Michael Graczyk. (Associated Press Oct. 26, 2006, 10:31AM)

HUNTSVILLE — Gregory Summers was executed today for initiating a murder-for-hire plot that authorities said led to the fatal stabbing of his parents and an uncle. The lethal injection of Summers, 48, came more than seven years after the execution of Andrew Cantu, convicted of taking the $10,000 offer and fatally stabbing Gene and Helen Summers, both 64, and Billy Mack Summers, 60. Their home in Abilene was set on fire after they were attacked and their bodies were found in the rubble.

Gregory Summers was the 22nd inmate executed this year in Texas, the nation's most active death penalty state. At least three other inmates have execution dates over the next four weeks. Asked by Warden Thomas Prasifka if he had a final statement while strapped to the Texas death chamber gurney, Summer replied, "No." Eight minutes later, at 9:16 p.m. CDT, he was pronounced dead.

Attorneys for Summers tried today to block the punishment by challenging the constitutionality of the lethal injection method, accusing prosecutors of hiding evidence and raising questions about testimony from a trial witness who implicated Summers. The U.S. Supreme Court three weeks ago refused to review his case. Additional appeals delayed the execution about three hours past its scheduled time of 6 p.m. CDT. Three appeals went to the high court late today, and all were rejected. "When I went to trial, all they proved was there were three murders," Summers said in recent interview on death row. "But they can't show I did this with Cantu because it never happened."

Gene and Helen Summers adopted their son when he was 3 days old. He was their only child. Prosecutors said Summers had hoped to collect $24,000 in insurance benefits. Relatives told authorities Summers was having financial problems and Gene Summers finally had decided to stop bailing him out financially. Billy Mack Summers, Gene Summers' brother, was mentally retarded and was living with the couple when they all were killed in June 1990. "These were real people that we all loved very, very much," Arbie McAliley, the victims' niece, said after watching Summers die. "Justice was served, we believe in our hearts. There was nothing inhumane about this at all tonight. "He got a better treatment than what he gave our three loved ones. It was brutal what they did. The only regrets we have is we had to sit and wait for something we knew was coming."

About 70 witnesses testified for the prosecution at Summers' trial, which was moved from Abilene because of publicity and held in Denton, about 185 miles to the east. "Using the West Texas vernacular, they didn't have a dog in this hunt," Miles LeBlanc, one of the trial prosecutors, said of the Denton County jurors who convicted Summers and decided he should die. "They didn't know this guy from Adam. And they believed, because of the evidence we were able to present, that this guy secured the services of Cantu to kill his parents and his disabled uncle, and after committing the crime set the house on fire to cover it up."

Cantu, a paroled burglar at the time, was supposed to find his payoff in a dresser drawer at the Summers' Abilene home, but no money was there. Summers said he knew Cantu's brother, who had worked for his father. A tip to police from Cantu's brother led to the arrest of Cantu and two companions. Summers became a suspect after relatives told authorities about his money troubles. Police also received a tip on a Crimestoppers telephone hot line about Summers' scheme.

Two men who accompanied Cantu the night of the slayings testified against him as part of a plea bargain. They told how Cantu slipped through a back window, stabbed Gene Summers nine times in the chest, his wife eight times and Billy Mack Summers seven times, then set the house on fire. Cantu denied involvement and blamed the companions, who also testified Cantu identified Greg Summers as the instigator.

Prosecutors also showed how Summers previously collected insurance payoffs from fires at his grandmother's house and a vehicle. At his trial, Summers' two ex-wives testified about his violence toward them and his four children and how they feared him. Summers said from death row he loved his parents but described other relatives as "estranged."

Cantu wasn't the first man approached by Summers to carry out the killings, according to testimony. And a fourth man in the car with Cantu the night of the slayings left when he learned of the activities planned for that night. Both also testified against Summers. "There was not one crucial piece of evidence," said Kent Sutton, another of the prosecutors. "It was the totality of the evidence. It was the overwhelming amount of evidence."

Houston Chronicle

"Italians work to honor inmate's wishes; Texas man put to death wanted his burial near Pisa." (APOct. 28, 2006, 9:47PM)

ROME — Officials in the Tuscany region of Italy are seeking to have a convicted killer who was executed in Texas buried in a small town near Pisa at the man's request, a teacher who is leading the effort said Friday. Gregory Summers, 48, was executed by lethal injection Wednesday for initiating a murder-for-hire plot that authorities said led to the fatal stabbings of his parents and an uncle. He had been corresponding with students from a local middle school for several years from prison. "He let it be known that he wanted to be buried in a white coffin with the (school) children's signatures," said the teacher, Maria Carmela Carretta. "He wanted it to be white as a symbol of innocence, and I, too, have decided that while it is not my favorite color, I will wear something white at the funeral."

Massimo Toschi, Tuscany's official in charge of international cooperation, said the region and the municipality of Cascina, 11 miles east of Pisa, both had agreed to have Summers buried there at their expense. "This is dependent, obviously, on getting consent from the family," Toschi said.

Process under way
Susanna Chiarenza, with the group Spring for Summers, said the necessary documents had been forwarded to the Italian consulate in Houston, which was in the process of translating them. As of late Thursday, Summers' body was still at a funeral home in Huntsville and had not been claimed, said Texas Department of Criminal Justice spokeswoman Michelle Lyons. If it was not claimed "in a reasonable time period," she said Texas prison officials would bury Summers at the prison cemetery. Carretta said she began writing to Summers about 10 years ago, after reading an article about him in the Catholic news magazine Famiglia Cristiana. She decided to send a contribution for his defense, and he sent a thank-you note. In 1998, she got students from a local middle school involved, and last October, they collected signatures for a moratorium against the death penalty and gave them to Texas state Sen. Leticia Van de Putte, a Democrat from San Antonio, when she visited Florence.

Foe of the death penalty
Italy is a firm opponent of capital punishment, which is banned throughout the European Union. Since 1999, the lights illuminating Rome's ancient Colosseum have turned from white to gold every time a death sentence is commuted around the world or a country abolishes capital punishment. Summers was convicted for his role in the fatal stabbing of Gene and Helen Summers, both 64, and Billy Mack Summers, 60, in 1990. Their home in Abilene was set on fire after they were attacked, and their bodies were found in the rubble.

Another man, Andrew Cantu, was executed seven years ago for killing them in exchange for $10,000. Cantu, 31, had denied involvement and blamed the killings on two companions who testified against him. Authorities said the slayings were the result of Summers' parents' frustration with bailing their son out of his financial problems and Greg Summers' attempt to get $24,000 in life insurance.

Dallas Morning News

"Son convicted of hiring man to kill parents is executed; Appeals delay injection for Texan also guilty in uncle's stabbing death." (Associated Press 12:00 AM CDT on Thursday, October 26, 2006)

HUNTSVILLE, Texas – Condemned inmate Gregory Summers was executed Wednesday for initiating a murder-for-hire plot that authorities said led to the fatal stabbing of his parents and an uncle. The injection of Mr. Summers, 48, came more than seven years after the execution of Andrew Cantu, convicted of taking the $10,000 offer and fatally stabbing Gene and Helen Summers, both 64, and Billy Mack Summers, 60. Their home in Abilene was set on fire after they were attacked, and their bodies were found in the rubble.

Gregory Summers was the 22nd inmate executed this year in Texas, the nation's most active death penalty state. At least three other inmates have execution dates over the next four weeks. Asked by Warden Thomas Prasifka whether he had a final statement while strapped to the Texas death chamber gurney, Mr. Summer replied "no." Eight minutes later, at 9:16 p.m., he was pronounced dead.

Attorneys for Mr. Summers tried Wednesday to block the punishment by challenging the constitutionality of the injection method, accusing prosecutors of hiding evidence and raising questions about testimony from a trial witness who implicated Mr. Summers. The U.S. Supreme Court three weeks ago refused to review the case. Additional appeals delayed the execution about three hours past its scheduled time of 6 p.m. Three appeals went to the high court late Wednesday, and all were rejected.

Gene and Helen Summers adopted their only child when he was 3 days old. Prosecutors said Gregory Summers had hoped to collect $24,000 in insurance benefits. Relatives told authorities that he was having financial problems, and Gene Summers had decided to stop bailing him out financially. Billy Mack Summers, Gene Summers' brother, was mentally retarded and was living with the couple when they were killed in June 1990. "It's taken 16 years, and it's time," said Brenda Steele, a niece of the victims. "All they were guilty of was loving him."

About 70 witnesses testified for the prosecution at Mr. Summers' trial, which was moved from Abilene because of publicity and held in Denton. Two men who accompanied Mr. Cantu the night of the slayings testified against him as part of a plea bargain. They also testified that Mr. Cantu named Mr. Summers as the instigator.

Fort Worth Star Telegram

"Man dies for killing of parents," by Michael Graczyk. (AP Posted on Thu, Oct. 26, 2006)

HUNTSVILLE -- Gregory Summers was executed Wednesday for initiating a murder-for-hire plot that authorities said led to the fatal stabbing of his parents and an uncle. The lethal injection of Summers, 48, came more than seven years after the execution of Andrew Cantu, convicted of taking the $10,000 offer and fatally stabbing Gene and Helen Summers, both 64, and Billy Mack Summers, 60. Their home in Abilene was set on fire after they were attacked, and their bodies were found in the rubble.

Gregory Summers was the 22nd inmate executed this year in Texas. Asked by Warden Thomas Prasifka if he had a final statement while strapped to the death chamber gurney, Summer replied "no." Eight minutes later, at 9:16 p.m., he was pronounced dead.

Attorneys for Summers tried Wednesday to block the punishment by challenging the constitutionality of the lethal injection method, accusing prosecutors of hiding evidence and raising questions about testimony from a trial witness who implicated Summers. The U.S. Supreme Court three weeks ago refused to review his case. Additional appeals delayed the execution about three hours. Three appeals went to the high court late Wednesday, and all were rejected.

Huntsville Item

"No last statement offered by condemned killer," by Stewart Smith. (Published: October 26, 2006 01:03 am)

Gregory Lynn Summers offered no final words before his execution by lethal injection Wednesday night at the Huntsville Unit. Three of Summers’ friends came in support of him, each dressed in a pink shirt and black slacks. They offered tears and prayers to the condemned, hands pressed firmly upon the glass. As Summers’ final moments passed his friends could be seen huddled together, sending out one final silent good-bye. He was pronounced dead at 9:16 p.m.

Summers, 48, was convicted in a murder-for-hire scheme to kill three people, his parents Mandell Eugene Summers and Helen Summers, both 64, and his uncle, Bill Mack Summers, 60. Each were stabbed to death inside their home in Abilene, which was later set ablaze. It is reported that Summers promised to pay co-defendant Andrew Cantu, who was also convicted of capital murder and sentenced to death, the sum of $10,000 for killing his family members. Summers’ execution marked the 22nd execution in Texas this year.

Attorneys for Summers tried Wednesday to block the punishment by challenging the constitutionality of the lethal injection method, accusing prosecutors of hiding evidence and raising questions about testimony from a trial witness who implicated Summers. The U.S. Supreme Court three weeks ago refused to review his case. Additional appeals delayed the execution about three hours past its scheduled time of 6 p.m. CDT. Three appeals went to the high court late Wednesday, and all were rejected. “When I went to trial, all they proved was there were three murders,” Summers said in recent interview on death row. “But they can’t show I did this with Cantu because it never happened.”

Gene and Helen Summers adopted their son when he was 3 days old. He was their only child. Prosecutors said Summers had hoped to collect $24,000 in insurance benefits. Relatives told authorities Summers was having financial problems and Gene Summers finally had decided to stop bailing him out financially. Billy Mack Summers, Gene Summers’ brother, was mentally retarded and was living with the couple when they all were killed in June 1990.

“These were real people that we all loved very, very much,” Arbie McAliley, the victims’ niece, said after watching Summers die. “Justice was served, we believe in our hearts. There was nothing inhumane about this at all tonight. “He got a better treatment than what he gave our three loved ones. It was brutal what they did. The only regrets we have is we had to sit and wait for something we knew was coming.”

Texas Execution Information Center by David Carson.

Gregory Lynn Summers, 48, was executed by lethal injection on 25 October 2006 in Huntsville, Texas for hiring the murder of three members of his family.

Around midnight on 11 June 1990, Abeline firefighters discovered three bodies in a burning house. Mandell Eugene "Gene" Summers, his wife, Helen, and his brother, Billy Mack Summers, had all been stabbed to death. The telephone line to the house was also cut.

On 15 June, police were contacted by Keenan Wilcox. Wilcox said that an acquaintance of his, Gregory Summers, then 32, tried to hire him to murder his parents and mentally retarded uncle and to burn their house down. He said that Summers offered to pay him from insurance money and cash in the house. On 19 June, another tipster called the police. This man said that his brother, Andrew Cantu, 22, told him that he was hired for $10,000 to commit the murders, but he didn't receive the money.

At Cantu's trial, Ramon Gonzales, 19, and Paul Flores testified that they agreed to commit a burglary with Cantu. According to their testimony, Flores cut a hole in a back window screen and crawled into the house. By the time they crawled inside, Cantu was already stabbing Gene Summers, who was lying in bed. Cantu threatened to kill them if they attempted to leave, then proceeded to the living room to stab Helen Summers, who was sleeping in a recliner. Cantu ordered Gonzales and Flores to search the home for the $10,000 that Summers promised to leave for them in a dresser drawer, then he proceeded to a front bedroom, where he stabbed Billy Mack Summers. Gonzales and Flores then told Cantu that they couldn't find the money, so he ransacked the house looking for it, to no avail. Cantu then doused the bedroom with lighter fluid and set it on fire. As they drove away, Cantu ordered Flores to get rid of the knife. Flores threw the murder weapon out of the car window. A woman found it while mowing her lawn.

Prosecutors alleged that Summers stood to collect $24,000 in life insurance from the death of his parents. At his trial, prosecutors presented evidence that Summers had previously collected insurance payoffs from fires at his grandmother's house and a vehicle. Numerous relatives and acquaintances testified about Summers' difficult relationship with his father and about his many threats to kill him and burn his house down with him in it. Witnesses also testified to his history of violence against his family, including kicking his first wife in the stomach when she was pregnant, beating his second wife, holding a gun to her head, and forcing her to beg for her life on her knees, and beating his sons.

A jury convicted Summers of capital murder in August 1991 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in June 1994. All of his subsequent appeals in state and federal court were denied.

Andrew Flores Cantu, who had a prior burglary record, was also convicted of capital murder and sentenced to death. He was executed on 16 February 1999. Ramon Gonzales was convicted of burglary and sentenced to 20 years in prison. He has been out on parole since 1999. Information on Paul Flores was not available for this report.

"I had nothing to do with this," Summers said in an interview from death row the week before his execution. "They know that ...I am so outraged that a system in a country that's supposed to be civilized can sit back and watch an innocent man be convicted and be sent to the death chamber, and nobody gives a damn," Summers said. "When I went to trial, all they proved was there were three murders," he said. "But they can't show I did this with Cantu because it never happened." "My parents were the greatest," Summers said of the couple who adopted him when he was three days old. "I didn't have to worry about not being wanted or a mistake or anything like that." Summers said he knew Andrew Cantu's brother, who had worked for his father.

Summers' execution was delayed about three hours by final appeals efforts. When the warden asked whether he had a final statement, Summers answered, "no." The lethal injection was then started. He was pronounced dead at 9:16 p.m.

ProDeathPenalty.com

Mandell Eugene Summers, Helen Summers, and Billy Mack Summers were fatally stabbed and left in a burning building. Evidence at trial revealed that Gregory Lynn Summers hired Andrew Cantu for $10,000 to murder Summers's relatives--father, mother, and mentally retarded uncle, respectively--for financial gain. Summers expected to collect $24,000 in insurance proceeds. The family had adopted Summers when he was three days old.

Andrew Cantu told a friend named Max that he [Cantu] had a job to do -- kill three old people; he explained that the intended victims were Gregory Summers' parents and Cantu asked for the friend's assistance. Max declined to help in any way, using the fact that he was on probation as an excuse. Later that same night, Cantu borrowed his brother's black sweat pants and sweat shirt, and paced in and out of the house as if waiting for someone, but no one arrived.

Early on June 11, 1990, Summers and Cantu were riding in Summers' truck and approached Max and asked him to contact his cousin, Ramon Gonzales. He was unable to contact him, but Gonzales heard that Max had tried to reach him, and thinking that Max was having gang troubles, Gonzales came to Abilene from Haskell with a friend, Paul Flores. Gonzales had previously only briefly met Cantu, and Flores met him that day. While riding around with Gonzales, Flores, and Max, Cantu asked if they would "waste" three old people whose adopted son wanted them killed. Cantu added that he would be paid with money, jewelry, and guns in the house, and from insurance policies collected later. When the others refused to help, Cantu changed the subject to burglary of a house. Gonzales and Flores agreed to join in the burglary. Max declined, saying he was on probation.

Gonzales dropped Cantu off at his house then took Max home. Max attempted to dissuade the others from assisting Cantu and believed they were homebound when last he saw them. However, Gonzales and Flores returned to pick up Cantu, who had again borrowed his brother's black sweat pants and shirt, explaining to his brother that he was going to pull a "heist." The three then went to a grocery store where Cantu purchased lighter fluid, gloves, pantyhose, and a cap. The cashier later identified Cantu and remembered some of the items he purchased. Cantu had earlier that day bought a knife from Flores. They then rode around before setting out for the house to be burglarized. Sometime near midnight, they drove through an alley behind the Summers' residence. Cantu was dropped off in the alley behind the house and cut the telephone line. Gonzales picked up Cantu, drove to a nearby street and parked. The three got out and walked toward the alley behind the Summers' home. Cantu carried the knife and lighter fluid.

A neighbor, seated on her unlit porch, saw three men and remembered that one was carrying a knife which shone in the streetlamp's light. The three men entered the Summers' yard through a back gate. Cantu cut a hole in a back window screen and crawled into the house. By the time Gonzales and Flores had crawled inside, Cantu was already stabbing Gene Summers, who was lying in his bed. Cantu threatened to "waste" Gonzales and Flores if they attempted to leave, then proceeded to the living room where he repeatedly stabbed Helen Summers as she sat sleeping in a recliner. Cantu ordered Flores and Gonzales to search the house for the promised money before proceeding to a front bedroom where he murdered Billy Mack Summers. Angry that Gonzales and Flores had not found it, Cantu ransacked the house looking for the money himself but found none of the promised money. Before leaving the scene, Cantu doused the bedroom with lighter fluid and set it on fire.

As they drove from the scene, ambulance and fire truck sirens could be heard heading in the direction of the Summers' home. When Cantu ordered Flores to "get rid" of the knife, Flores, called "slow poke" for his mental prowess, threw it out the car window. This infuriated Cantu. The bloody knife was found by a woman mowing her lawn.

The three went to the home of Cantu's uncle, where Cantu chided Gonzales and Flores for their failure to find the promised money and searched them for it, accusing them of theft. Cantu threatened to kill Flores and Gonzales if they had the money or talked about the incident. Flores and Gonzales returned to Haskell. The following morning, June 12, 1990, in a highly uncharacteristic manner, Cantu asked his brother if he had seen the news. Alerted by the strangeness of the question, his brother watched the midday news and learned about the triple murders. Knowing Cantu and that the victims were Greg Summers' parents, he asked him whether he had been involved in the murders. Cantu denied involvement. Later that week, his brother again asked Cantu if he had any part in the murders; disgusted by the answer, he called the police and made a statement on June 19, 1990.

Max also asked Cantu about the murders; Cantu confessed that he had committed them and complained about not having been paid. On June 15, 1990, a man contacted the police. He said he was an acquaintance of Summers, reported that Summers had approached him in the recent past, attempting to hire him to murder his parents and uncle, and to burn their house down. Summers offered to pay the man from insurance money and case in the house. His suspicions were aroused upon reading the details of the murders and the victim's identities in the newspaper.

While in custody, Summers befriended another inmate who assisted Summers with legal work and prepared documents for Summers. When the inmate realized that Summers was using documents prepared by him as false evidence, he contacted prison officials and told them of his encounter with Summers. During their interactions, Summers told the inmate of Summers's part in the murders. Andrew Cantu was also convicted of capital murder and was executed in 1999. Sandra Mitchell, a relative of the victims said, "I just think it has gone on too long. It should have happened 10 years ago."

UPDATE: Gregory Summers was executed today for initiating a murder-for-hire plot that authorities said led to the fatal stabbing of his parents and an uncle. "These were real people that we all loved very, very much," Arbie McAliley, the victims' niece, said after watching Summers die. "Justice was served, we believe in our hearts. There was nothing inhumane about this at all tonight. He got a better treatment than what he gave our three loved ones. It was brutal what they did. The only regrets we have is we had to sit and wait for something we knew was coming."

National Coalition to Abolish the Death Penalty

Gregory Summers, TX, October 25
Do Not Execute Gregory Lynn Summers

Texas The state of Texas is scheduled to execute Gregory Lynn Summers on Oct. 25. Summers was convicted of murder for his role in allegedly conspiring to kill three family members for money. Summers allegedly hired Andrew Cantu to kill his adoptive mother, father, and uncle for financial purposes. Cantu entered the home of the Summers family, where he fatally stabbed Mandell Eugene Summers, Helen Summers, and Billy Mack Summers.

During the trial, the prosecutors called William Spaulding to testify, an inmate whom Summers befriended while in custody. Spaulding testified only after he discovered that Summers had betrayed him, making Spaulding’s testimony unreliable. Also, Andrew Cantu, who was executed in 1999, never testified. His two accomplices, both of whom stood to gain from testifying, claimed that Cantu had made a deal with Summers, but no evidence of this agreement exists.

Furthermore, the state called Dr. Grigson to testify during the sentencing phase, where he stated that Summers may represent a future danger. However, Dr. Grigson had falsely testified for the state in another trial, making him unreliable as well. Dr. Grigson has since been expelled from the American Psychiatric Association and the Texas Society for Psychiatric Physicians for ethics violations. He has testified in about 150 capital punishment cases, where he has almost always sided with the prosecution. In many of these testimonies, Dr. Grigson has stated that the defendant is 100 percent sure to be a future danger, often without even interviewing the defendant. One member of the APA board stated, “[Dr. Grigson] oversteps the bounds of his professional competence.” This person went on to say that no person could say with 100 percent certainty that a person is a future danger to society. The court also allowed the state to produce several other witnesses who offered nothing of substance to the case, only character assessments of Summers. None of these witnesses could establish that Summers and Cantu made a deal about the murders.

Gregory Summers did not participate in the physical murder of his family members. His sentence rests upon unreliable testimony, and no direct evidence links him to Andrew Cantu. With unreliable testimony from Spaulding and Dr. Grigson, as well as no clearly established connection between Cantu and Summers, one cannot argue that Summers is guilty beyond reasonable doubt. Summers has never committed a violent crime, and cannot even be linked to the murderer in this case.

Please write to Gov. Rick Perry on behalf of Gregory Summers

Texas Attorney General

Wednesday, October 18, 2006
Media Advisory: Gregory Summers Scheduled For Execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Gregory Lynn Summers, who is scheduled to be executed after 6 p.m. Wednesday, October 25, for hiring another man to kill his adopted family in 1990. A Denton County jury sentenced Summers to death in August 1991 for hiring Andrew Cantu to murder the three family members. Cantu was convicted and sentenced to die in April 1991; Cantu was executed in February 1999.

FACTS OF THE CRIME

Around midnight on June 11, 1990, Abilene firefighters discovered three bodies in a burning house. The victims were Summers’ father, Mandell Eugene “Gene” Summers; his mother, Helen Summers; and his uncle, Billy Mack Summers. The three were stabbed to death, and their home set ablaze. The investigation of the murders led to the indictment and arrest of Gregory Summers and Andrew Cantu for capital murder.

Late at night on June 10th, Cantu and two other men went to a grocery store where Cantu purchased lighter fluid, gloves, pantyhose and a cap. The three men then drove to the Summers’ residence. Cantu cut the telephone line to the house, and the three men went inside the home. Cantu stabbed Gene Summers, who was lying in his bed; then went to the living room where he stabbed Helen Summers; followed by a trip to a front bedroom where he stabbed Billy Mack Summers.

Cantu and the two accomplices searched the house for money but found none. Cantu ordered one of the accomplices to get rid of the murder weapon. The man threw it out the car window. The knife was found by a woman mowing her lawn. In a conversation with a man who was not at the murder scene, Cantu admitted that he killed the three people and complained that he had not been paid for the killings.

On June 15, 1990, police were contacted by an acquaintance of Gregory Summers who reported that Summers had tried to hire him to murder Summers’ parents and uncle and to burn their house down. The acquaintance said Summers offered to pay him from insurance money and cash in the house. The acquaintance suspicions were aroused after reading a newspaper story about the details of the murders and the victims’ identities. Relatives and friends testified about Summer’s difficult relationship with his father and about Summers’ numerous threats to kill Gene Summers and burn his house down with him in it.

SUMMERS’ HISTORY

The testimony from various members of Summers’ family established a pattern of horrible brutality suffered at his hands. He assaulted his first wife, kicking her in the stomach while she was pregnant. He terrorized his hospitalized grandmother for money. He battered his young sons. His second wife testified that Summers beat her, and once drove her to secluded woods where he forced her to beg on her knees for her life as he held a cocked gun to her head. Numerous family members testified that they feared Summers. Evidence was also introduced that while incarcerated, Summers threatened to have an inmate killed. Two psychiatrists testified that Summers is a continuing threat to society who cannot be reformed.

PROCEDURAL HISTORY

06/11/90 -- Andrew Cantu killed Summers’ adoptive parents and retarded uncle at Summers’ behest.
08/16/90 -- A Taylor County grand jury returned 3 capital murder indictments against Summers.
01/16/91 --Taylor County grand jury indicted Andrew Cantu for capital murder.
05/29/91 -- Andrew Cantu was found guilty of capital murder.
05/31/91 -- The Cantu jury answered the special questions and the trial judge sentenced Andrew Cantu to death.
06/13/91 -- Summers’ motion for change of venue was granted; all three cases transferred to the 16th District Court in Denton County.
08/09/91 -- Guilt-innocence phase began in two of the cases (one was not tried and remains pending.)
08/21/91 -- Summers was convicted of capital murder.
08/23/91 -- The jury answered the special issues and Summers was formally sentenced to death by the 350th District Court judge.
09/10/91 -- Summers filed a motion for a new trial and notice of appeal.
09/13/91 -- Summers’ cases were transferred back to Taylor County.
08/24/92 -- Summers filed a direct appeal raising 33 points of error.
06/08/94 -- The Texas Court of Criminal Appeals affirmed Summers’ conviction and sentence.
06/23/94 --Summers asked for a rehearing of the Texas court’s opinion in one of the two cases on direct appeal.
10/07/96 -- The U.S. Supreme Court denied certiorari review.
10/01/97 -- Summers filed an application for a state writ of habeas corpus raising 22 issues.
11/12/97 --On Summers’ state writs, Judge Holloway of Taylor County found that no contested issues of fact exist.
02/16/99 -- Andrew Cantu was executed for his part in the murders.
10/11/99 -- The trial court recommends that the writs be denied.
02/22/01 -- Pursuant to Court of Criminal Appeals, the trial court entered findings recommending the denial of relief.
03/28/01 -- The Texas Court of Criminal Appeals denies relief on writs.
04/04/01 -- Summers filed his federal habeas corpus petition raising 19 claims in the U.S. District Court.
11/15/01 -- Summers filed an amended federal writ petition.
03/24/04 -- The federal district court dismissed Summers’ federal habeas petition.
04/23/04 --Summers filed notice of appeal in the Fifth Circuit.
05/10/04 -- The federal district court granted certificate of appealability (“COA”) on three claims only.
08/03/04 --Summers filed an application for additional COA to include seven additional claims in the Fifth Circuit.
12/08/04 --Summers filed his brief on the merits in the 5th U.S. Circuit Court of Appeals.
12/02/05 --The 5th Circuit Court denied motion for additional COA and affirms district court’s denial of habeas relief.
12/16/05 -- Summers files a motion for rehearing by all members of the 5th Circuit Court.
01/27/06 -- Summers’ petition for rehearing was denied by the 5th Circuit Court.
03/15/06 -- The 350th District Court of Taylor County, Texas, scheduled Summers’ execution for Wednesday, October 25, 2006.
04/27/06 -- Summers petitioned the U.S. Supreme Court for certiorari review of the Fifth Circuit Court's opinion.
10/02/06 -- The U.S. Supreme Court denied certiorari review.

Canadian Coalition to Abolish the Death Penalty (Inmate Website)

Gregory Summers #999010
12 BA 9
Polunsky Unit
12002 FM 350 South
Livingston, TX 77351 USA

GREGORY SUMMERS INTERNATIONAL FUND
cc N. 031718 (ABI: 3104 / CAB: 01605)
Deutsche Bank SpA - Sport. ³E² Milano, via Palestrina 2 - 20124 Milano

Deathrow.USA

Greg will be 43 on March 14th. He has been on DR since he was 33 for a crime he has always denied being involved in. In fact, since he was in there, he has always been trying hard to prove his innocence.

He was born in Abilene, Texas, but there's no one who takes care of him in his country. The only people he visits with and write to are in Europe. Thus he spends very long periods in total solitude.

He likes talking and reading, only in English so far... He is very open minded, loves art and music. When piddling was allowed he used to paint. Now he can only make black and white drawings.

Greg Summers' case is now at a very delicate phase: Greg's appeal filed to the State Court in 1999 has just been denied and his lawyers have to urgently file a new petition to the Federal Court within August 1st. No one knows how long it's going to take before hearing the judge's reply nor how his response will be. It may take one year or a few months before the judge's reply and an execution date.

What we are trying to do is: achieving as much support as possible here in Europe in order to be prepared in case of a Federal Court's denial or in case Greg is given a date of execution.

Summers v. Dretke, 431 F.3d 861 (5th Cir. 2005) (Habeas).

Background: State prisoner who had been convicted of murder and sentenced to death in connection with alleged murder-for-hire conspiracy filed petition for federal habeas relief. The United States District Court for the Eastern District of Texas, Thad Heartfield, Chief Judge, entered order denying petition and issuing certificate of appealability (COA) only on three of issues that prisoner sought to raise, and prisoner appealed and sought COA on additional issues.

Holdings: The Court of Appeals, Edith Brown Clement, Circuit Judge, held that: (1) state prisoner who had been convicted, at least in part, based on testimony of jailhouse informant was not entitled to COA as to admissibility of informant's testimony, as to due process claim, or on Brady issue; (2) decision to admit evidence of out-of-court statements of alleged co-conspirator was not “contrary to,” or an “unreasonable application of,” Confrontation Clause requirements as announced by the Supreme Court; (3) uncorroborated, recanting affidavit of jailhouse informant was insufficient to permit federal habeas court to disturb state court's finding, in admitting informant's testimony, that he had not been coerced or threatened; and (4) jury instructions that were given by Texas state court at penalty phase of capital murder case did not prevent jury from considering mitigating evidence of good character that defendant presented. Application denied; judgment affirmed.

EDITH BROWN CLEMENT, Circuit Judge:

Petitioner-Appellant Gregory Lynn Summers (“Summers”) appeals from the district court's denial of his application for a writ of habeas corpus. Summers also seeks a Certificate of Appealability (“COA”) for claims not certified by the district court. Because Summers has failed to carry his burden in both, we affirm the judgment of the district court and deny Summers's application.

I. FACTS AND PROCEEDINGS
A. Underlying Crime and Involved Persons

Mandell Eugene Summers, Helen Summers, and Billy Mack Summers were fatally stabbed and left in a burning building. Evidence at trial revealed that Summers hired Andrew Cantu to murder Summers's relatives-father, mother, and uncle, respectively-for financial gain. For this crime, Texas tried, convicted, and sentenced Summers to death in 1991. FN1. Texas executed Cantu in 1999 for his part in the crime.

Cantu enlisted the aid of Raymond Gonzales and Paul Flores to carry out the act. (Cantu had solicited another, Max Aguirre, but Aguirre declined to join the conspiracy.) Cantu's payment was to be from money found in the house. Among others, Aguirre, Flores, and Gonzales each testified in Summers's trial to statements made by Cantu regarding Summers.

After the publication of news reports on the crime, Keenan Wilcox contacted the police and described how Summers had approached him to perform the same acts, i.e., the murder of Summers's relatives and the burning of their house. Wilcox reported that Summers offered to pay for the crime with money found in the house and from insurance proceeds. Wilcox testified about Summers's solicitation.

While in custody, Summers befriended William Spaulding, another inmate. Spaulding assisted Summers with legal work and prepared documents for Summers. When Spaulding realized that Summers was using documents prepared by Spaulding as false evidence, Spaulding contacted prison officials and told them of his encounter with Summers. During their interactions, Summers told Spaulding of Summers's part in the murders. Spaulding testified as to those events at Summers's trial.

B. Procedural History

The Texas Court of Criminal Appeals affirmed Summers's conviction on June 8, 1994. On October 7, 1996, the United States Supreme Court denied Summers's petition for a writ of certiorari. On October 1, 1997, Summers filed a habeas petition with the district court in Taylor County. The Texas Court of Criminal Appeals denied this application for state post-conviction relief on March 28, 2001.FN2

FN2. According to Summers, the Court of Criminal Appeals Order was dated March 28, 2001, but was mailed to counsel on March 26. Dretke cites the date as March 28, 2001 in his reply brief. The district court opinion cites the date as March 29, 2001.

On April 4, 2001, Summers filed an application for a writ of habeas corpus in the United States District Court for the Eastern District of Texas. He filed an amended application on November 15, 2001. Summers asserted ten claims for relief. The application was opposed by Appellee-Respondent Doug Dretke, Director, Texas Department of Criminal Justice (the “Director”).

On March 4, 2004, the district court released a Memorandum Opinion and Order granting the Director's motion for summary judgment. No such motion had been filed. In response to Summers's Motion to Alter and Amend Judgment, the district court issued an Amended Judgment on March 24, 2004. The Amended Judgment read: “The Court, having considered the allegations in the petition, the authorities and exhibits in the application, answer, and reply, and the evidence in the record, finds that the application is not well-taken and it will be denied.” The district court then entered judgment “for the Director on all claims in Summers' [sic] application.”

Summers filed a Notice of Appeal on April 23, 2004. On May 10, 2004, the district court granted a COA for three of Summers's original ten claims-the second, fourth, and fifth. The three claims included in the COA are: (1) the trial court violated Summers's constitutional rights by admitting Cantu's statements into evidence; (2) the state violated Summers's constitutional rights by withholding exculpatory evidence relevant to the credibility of certain witnesses; and (3) the trial court violated Summers's constitutional rights by giving jurors misleading and constitutionally defective instructions which prevented them from considering mitigating evidence at sentencing. The district court declined to issue a COA as to seven of Summers's claims. The parties have fully briefed the three certified issues, and the appeal currently pends before this court.

On August 3, 2004, Summers filed an Application for Additional Certificate of Appealability with this court, which raised four arguments: (1) this court should grant COA for all ten claims presented before the district court; (2) this court should grant COA for Summers's first, seventh, eighth, ninth, and tenth claims; (3) reasonable jurists could disagree about whether Spaulding's testimony was admissible; and (4) reasonable jurists could disagree about the materiality of the testimony of Dr. Grigson, a witness for the state, and whether or not the state knowingly presented false evidence. The parties have fully briefed the application, which is currently pending before this court.

II. STANDARD OF REVIEW

Summers filed his petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). As a result, the petition is subject to the procedures and standards imposed by AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

A. Appeal from a Denial of a Habeas Corpus Petition

“In a habeas corpus appeal, we review the district court's findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court's decision as the district court.” Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir.2001) (quoting Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998)). “A federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). As a result, whether at the district court or the circuit court, a federal court's review of a claim adjudicated in a state court is deferential:

Under § 2254(d), a federal court cannot grant habeas corpus relief with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of that claim either (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. Hughes v. Dretke, 412 F.3d 582, 588-89 (5th Cir.2005) (citing 28 U.S.C. § 2254(d)). Moreover, this court has held that “a federal habeas court is authorized by Section 2254(d) to review only a state court's ‘decision,’ and not the written opinion explaining that decision.” Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir.2003) (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc)). See also Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir.2001) (“The statute compels federal courts to review for reasonableness the state court's ultimate decision, not every jot of its reasoning.”).

(1) Findings of Fact

A state court's factual findings are “presumed to be correct.” Hughes, 412 F.3d at 589 (citing 28 U.S.C. § 2254(e)(1)). Before a federal court, “a petitioner has the burden of rebutting this presumption with clear and convincing evidence.” Id. (citing 28 U.S.C. § 2254(e)(1)).

(2) Conclusions of Law

Under AEDPA, a federal court's assessment of a state court's conclusions of law is similarly deferential. The Supreme Court has determined that section 2254(d)(1) affords a petitioner two avenues, “contrary to” and “unreasonable application,” to attack a state court application of law. See Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (noting the clauses have “independent meaning”). Under the first clause: a state court decision is “contrary to ... clearly established Federal law, as determined by the Supreme Court” if: (1) “the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases,” or (2) “the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Foster v. Johnson, 293 F.3d 766, 776 (5th Cir.2002) (quoting Williams, 529 U.S. at 405-06, 120 S.Ct. 1495).

Under the second clause, “a state court decision is ‘an unreasonable application of clearly established’ Supreme Court precedent if the state court ‘correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.’ ” Id. (quoting Williams, 529 U.S. at 407-08, 120 S.Ct. 1495). The Supreme Court provided further guidance:

First, the Court indicated that the inquiry into unreasonableness is an objective one. Second, the Court emphasized that “unreasonable” does not mean merely “incorrect”: an application of clearly established Supreme Court precedent must be incorrect and unreasonable to warrant federal habeas relief. Id. (citing Williams, 529 U.S. at 409-12, 120 S.Ct. 1495) (internal citations omitted). See also Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir.2004) (“[F]ederal habeas relief is only merited where the state court decision is both incorrect and objectively unreasonable.”). Only if a state court's application of federal constitutional law fits within this paradigm may this court grant relief.

B. Application for Additional COA

This court will grant a COA only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, a petitioner must “demonstrate[e] that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. The Supreme Court instructs that the “question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. Finally, “[b]ecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner's] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). This court may not grant a COA if there is no doubt that reasonable jurists would agree with the district court's resolution and that the issues presented are not adequate to deserve encouragement.

III. DISCUSSION

This is a case in two parts: the appeal, pursuant to the COA issued by the district court, and the application for an additional COA. We take the second part first and address the additional COA before reaching the substance of the appeal.

A. Application for Additional COA

Under AEDPA, a petitioner must obtain a COA, from either a district court judge or a circuit court judge before he can appeal the district court's denial of habeas relief. See 28 U.S.C. § 2253(c). See also Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (“[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). To determine whether a COA should be granted requires an overview of the claims in the habeas petition and a general assessment of their merits. This court looks to the district court's resolution of the petitioner's constitutional claims and asks whether it 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.” Brown v. Dretke, 419 F.3d 365, 370 (5th Cir.2005) (citing Miller-El, 537 U.S. at 336, 123 S.Ct. 1029).

After the district court refused to issue a COA as to all of his claims, Summers filed an Application for Additional Certificate of Appealability with this court. In the application, Summers raised four arguments: (1) this court should grant COA for all ten claims presented before the district court; (2) this court should grant COA for Summers's first, seventh, eighth, ninth, and tenth claims; (3) reasonable jurists could disagree about whether Spaulding's testimony was admissible; and (4) reasonable jurists could disagree about the materiality of Dr. Grigson's testimony and whether the state knowingly presented false evidence.

(1) COA for all Ten Claims

Because the district court approached the issues presented as though the Director had filed a summary judgment, Summers believes that the entire analysis is invalid and that this court should grant a COA with respect to all of the issues raised before the district court. We disagree.

It is true that the original judgment in favor of the Director was based, in part, on the summary judgment standard. To the extent that the district court's use of the summary judgment standard for the standard of review under AEDPA altered its analysis, the effect was to make finding in favor of the Director more difficult, not less. Nevertheless, the district court granted Summers's motion to alter or amend the judgment. As a result, the district court's final judgment, the judgment under consideration for the additional COA, was entered without using the summary judgment standard.

Summers does not cite authority for the proposition that application of the summary judgment standard mandates the grant of a COA. Finally, and conclusively, because Summers has not even alleged that a “denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), resulted from the complained-of actions, a COA is not merited for all ten issues raised before the district court.

(2) COA for Summers's First, Seventh, Eighth, Ninth, and Tenth Claims

Summers maintains that the first, seventh, eighth, ninth, and tenth claims raised before the district court cannot be briefed because of page limitations. Rather, Summers directs this court to the briefing before the district court for support of his request for a COA as to these claims. We decline this request. By failing to adequately brief these issues, Summers has waived them. See Hughes, 412 F.3d at 597; Lookingbill v. Cockrell, 293 F.3d 256, 263 & n. 11 (5th Cir.2002).

(3) COA for the Admissibility of Spaulding's Testimony

Spaulding made Summers's acquaintance while they were both inmates at the Taylor County Jail. Spaulding's testimony is corroborating evidence of a conspiracy and therefore was instrumental to the entry of testimony under the co-conspirator exception. Summers claims that reasonable jurists could disagree about whether Spaulding's testimony was admissible. The district court denied habeas relief and a COA on this claim. Summers now seeks a COA from this court.

With respect to Spaulding's testimony, Summers asserts three sub-claims: (1) that Spaulding, acting as an agent of the state, questioned him in violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); (2) that the state knowingly sponsored Spaulding's false testimony in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); and (3) that the state failed to disclose Spaulding's relationship with authorities in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Each of these claims depends on Summers's presumption that Spaulding lied when he testified at trial to the following facts: (1) that Summers approached Spaulding (and not vice versa); (2) that Spaulding testified as to information gained before contact with authorities; and (3) that the state had not offered Spaulding anything in exchange for his testimony.

In support of his position, Summers relies exclusively on a 1997 affidavit from Spaulding, which was introduced at Summers's habeas proceedings. In that affidavit, Spaulding said, contrary to his trial testimony, that Taylor County detectives contacted him before Summers confided in him. Also, Summers claims that the detectives asked Spaulding to obtain incriminating information from Summers. Finally, Summers describes some benefits Spaulding received as a result of his testimony. If these statements could be taken as true, Summers would, likely, merit a COA. However, under AEDPA, the COA must be denied.

The state habeas court has had the opportunity to address the same issue presented here and made specific findings that directly controvert Summers's position:

William Spaulding was not an agent of the State when [Summers] told him of [Summers]'s involvement in the murder for hire of his parents and uncle. William Spaulding did not question or solicit information from [Summers] at the State's request. The State's agents did not approach Mr. Spaulding to testify against [Summers]; instead, Mr. Spaulding approached law enforcement personnel. Mr. Spaulding testified at trial only about [Summers]'s statements to him before Mr. Spaulding contacted law enforcement officers. Mr. Spaulding's testimony at trial was not false, misleading, or incomplete.

AEDPA mandates that these findings are “presumed to be correct.” Hughes, 412 F.3d at 589 (citing 28 U.S.C. § 2254(e)(1)). Moreover, Summers “has the burden of rebutting this presumption with clear and convincing evidence.” Id. (citing 28 U.S.C. § 2254(e)(1)). Finally, where, as here, the state habeas court has made a credibility determination, that finding is also afforded deference under AEDPA.FN3 Guidry v. Dretke, 397 F.3d 306, 326 (5th Cir.2005) (noting that a federal habeas court “may not substitute its own credibility determinations for those of the state court simply because it disagrees with the state court's findings”); id. at 333 (Garza, J., dissenting) (same); Pondexter, 346 F.3d at 149-50.

FN3. This deference existed even before AEDPA. See Carter v. Johnson, 131 F.3d 452, 463 (5th Cir.1997) (“[W]e are required to accept, as conclusive, both the factual findings and the credibility choices of the state courts.”).

The district court concluded that Spaulding's 1997 affidavit failed to rebut the presumption in favor of state courts' factual findings. We agree. This circuit has long viewed recanting affidavits with “extreme suspicion.” Baldree v. Johnson, 99 F.3d 659, 663 (5th Cir.1996). See also Graves v. Cockrell, 351 F.3d 143, 153 (5th Cir.2003); Spence v. Johnson, 80 F.3d 989, 1003 (5th Cir.1996); United States v. Adi, 759 F.2d 404, 408 (5th Cir.1985). This affidavit is no different; it stands alone, uncorroborated, and unsupported.FN4 With such scant support, this court is in no position to disturb the factual findings of a state court. Because all of the claims relating to the COA for the Spaulding testimony are dispensed with once the factual findings of the state court are accepted, we need not discuss the sub-claims in detail. Finding the point beyond debate, we deny a COA as to the Spaulding testimony's admissibility.

FN4. Summers looks to Guy v. Cockrell, 343 F.3d 348 (5th Cir.2003), in support of his position that this court should accept the 1997 affidavit as true. However, the Guy court expressly limited its ruling to the circumstances of that case. In Guy, because the state had waived its exhaustion defense, there was no state habeas record and no findings of fact to which the court was required to defer under AEDPA. See id. at 351-52. Guy cannot be read as an endorsement of this circuit's preference for post-trial affidavits over state courts' factual findings.

(4) COA for the Admissibility of Dr. Grigson's Testimony

Dr. Grigson testified as a witness for the state in the penalty phase. Dr. Grigson testified that Summers represented a future danger. Summers contends that reasonable jurists could disagree about whether Dr. Grigson's testimony was admissible. With respect to Dr. Grigson's testimony, Summers asserts two sub-claims: (1) that the state knowingly sponsored Dr. Grigson's false testimony in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and (2) that the state withheld exculpatory evidence regarding Dr. Grigson's history as a witness in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court denied habeas relief and a COA on this claim. Summers now seeks a COA from this court.

a. The Napue/Giglio Claim

For Summers to prevail under Napue/Giglio, he must prove that Dr. Grigson's testimony was (1) false, (2) known to be so by the state, and (3) material. See United States v. Mason, 293 F.3d 826, 828 (5th Cir.2002) (“To prove a due process violation, the appellants must establish that (1) [the witness] testified falsely; (2) the government knew the testimony was false; and (3) the testimony was material.”). In the context of an application for the COA, Summers must show that the district court's disposition of the claim is debatable. We find it is not.

The district court found that Summers had rebutted the state habeas court's presumption of correctness with respect to the first two of three elements of Napue/Giglio. However, the district court denied relief when it determined that Dr. Grigson's testimony was immaterial as to the final outcome in the penalty phase. Summers, in his application for an additional COA, contends that “the District Court's holdings and the evidence presented by Mr. Summers indicate that the issue of materiality in this instance is debatable.” Leaving aside the correctness of the district court's resolution of the first two elements of Napue/Giglio,FN5 Summers fails to appreciate that an affirmative answer on those first two elements has no effect on the materiality inquiry.

FN5. The state habeas court made express factual findings on this issue. Summers produced evidence which, in the opinion of the district court, contradicted those findings. Because it does not alter the outcome of this appeal, we make no comment on the district court's rejection of a portion of the state court's findings, except to note that the clear and convincing standard is a high one. See Crowe v. Smith, 261 F.3d 558, 563 (5th Cir.2001).

Where a state habeas court has made express findings on the issue of materiality, we are precluded from affording habeas relief under AEDPA unless the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Here, the state habeas court made express findings, unchallenged by Summers, that foreclose relief under AEDPA: “The evidence to support [Summers]'s future dangerousness was overwhelming even without the testimony of Dr. Grigson. Dr. Clay Griffith testified in a manner that virtually echoed Dr. Grigson's testimony. Dr. Griffith's testimony is not attacked.” In response, Summers cites, inter alia, Gardner v. Johnson, 247 F.3d 551 (5th Cir.2001), and argues that psychiatric testimony is especially prejudicial. Summers overlooks the fact that, contrary to Gardner, where the psychiatric testimony “was the centerpiece of the evidence presented by the State during the punishment phase,” id. at 562, the testimony in question here was mirrored by another psychiatrist whose testimony remains unchallenged. In addition to the psychiatric testimony, the state presented numerous witnesses in support of its future dangerousness claim.

Summers also relies on an affidavit from a juror, in which the juror states that Dr. Grigson's testimony made up part of the “most influential testimony” from the penalty phase. Leaving aside the point that the juror identifies Dr. Grigson's testimony as only a part of the influential testimony, FN6 this portion of the affidavit is inadmissible and cannot be considered. Under Rule 606(b) of the Federal Rules of Evidence, jurors' affidavits are inadmissible “regarding the following four topics: (1) the method or arguments of the jury's deliberations, (2) the effect of any particular thing upon an outcome in the deliberations, (3) the mindset or emotions of any juror during deliberation, and (4) the testifying juror's own mental process during the deliberations.” Pyles v. Johnson, 136 F.3d 986, 991 (5th Cir.1998) (citing United States v. Ortiz, 942 F.2d 903, 913 (5th Cir.1991)). Indeed, in matters involving a death sentence, this circuit has noted that “we are convinced that Rule 606(b) does not harm but helps guarantee the reliability of jury determinations in death penalty cases.” United States v. Jones, 132 F.3d 232, 246 (5th Cir.1998) (citing Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)).

FN6. The juror identified the combination of both Dr. Grigson's testimony and Darrell Shirlls's testimony as “the most influential testimony” from the penalty phase.

As to the materiality prong, Summers's argument is unavailing. The state habeas court, the district court, and this court all agree that Dr. Grigson's testimony contributed little in light of the wealth of future dangerousness evidence presented by the state. Summers has failed to show that reasonable jurists could disagree with the district court's resolution of this Napue/Giglio claim.

b. The Brady Claim

Summers's Brady sub-claim with respect to Dr. Grigson's testimony relies on a letter written by Norman Kinne, a Dallas County assistant district attorney, to Dr. Grigson. The letter, referred to as the “Kinne Report,” enclosed a report on inmates in Dallas County with commuted death sentences. According to Summers, the letter is exculpatory evidence of “the extent of Dr. Grigson's inaccurate prior predictions.” Summers alleges that the prosecution withheld this evidence in violation of Brady.

To make a Brady claim, Summers must prove: (1) that the “evidence at issue [is] favorable to the accused, either because it is exculpatory, or because it is impeaching;” (2) that the “evidence [has] been suppressed by the State, either willfully or inadvertently;” and (3) that “prejudice [has] ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Before a Brady claim can arise, Summers must show that the prosecution team had access to the evidence. See United States v. Webster, 392 F.3d 787, 798 n. 20 (5th Cir.2004) (discussing the imputation of knowledge within the prosecution team). He has made no such claim. Indeed, the state habeas court concluded just the opposite: “No person connected with [Summers]'s case as a prosecutor, prosecutorial staff, or law enforcement officer had knowledge of the ‘Kinne letter’ or the information contained in the letter.”

The district court ruled that Summers failed to establish that the prosecution knew of the Kinne Report. This ruling misstates the law. Under AEDPA, the question is not whether or not the petitioner proved his claim, but whether or not the state court's findings to that effect were sufficiently rebutted. AEDPA places the burden on the petitioner to rebut the presumption of correctness of the state court's findings. Because he offered no evidence of knowledge of the Kinne Report on the part of the prosecution, Summers cannot overcome the presumption of correctness.

Moreover, the lack of materiality of Dr. Grigson's testimony is as damaging to Summers's Brady claim as it was to his Napue/Giglio claim. Because of the relative insignificance of Dr. Grigson's testimony, Summers cannot show prejudice. As Summers cannot satisfy any aspect of Brady, the district court's rejection of this claim is beyond debate. No COA will issue.

B. Appeal from a Denial of a Habeas Corpus Petition

Having addressed the application for additional COA, we now turn to the three issues for which the district court granted a COA. They are: (1) the trial court violated Summers's constitutional rights by admitting Cantu's statements into evidence; (2) the state violated Summers's constitutional rights by withholding exculpatory evidence relevant to the credibility of certain witnesses; and (3) the trial court violated Summers's constitutional rights by giving jurors misleading and constitutionally defective instructions which prevented them from considering mitigating evidence at sentencing. We address each seriatim.

(1) The Admissibility of Cantu's Statements

On behalf of the state, Paul Flores and Raymond Gonzales testified as to statements about Summers made out-of-court by Andrew Cantu, now deceased. Summers asserts that the admission of the statements violated his constitutional right to confront witnesses against him. With respect to the admission of Cantu's out-of-court statements, Summers raises three sub-claims: (1) that there was insufficient independent evidence of a conspiracy; (2) that the trial court should have conducted a James hearing; and (3) that the trial court should have admitted another of Cantu's out-of-court statements perceived by Summers as impeaching Cantu's credibility. The district court denied habeas relief, but granted a COA on this issue.

a. Independent Evidence of a Conspiracy

Summers maintains that, aside from the statements themselves, the state produced insufficient independent evidence to support the admission of those statements under the co-conspirator exception. While it may be true that this circuit and many others have required independent evidence in support of a conspiracy, see, e.g., United States v. Narviz-Guerra, 148 F.3d 530, 536 (5th Cir.1998), that is not the question before this court. We need not reach the issue. The doctrine of federalism, as embodied in AEDPA, precludes the result Summers urges. Under AEDPA, the state courts are bound, not by our jurisprudence or the jurisprudence of our sister circuits, but by “clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

The Supreme Court has not mandated a requirement for independent evidence in support of a conspiracy finding under the Confrontation Clause. See Bourjaily v. United States, 483 U.S. 171, 182, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (holding that “independent indicia of reliability [are] ... not mandated by the Constitution.”). Indeed, just the opposite is true: “ Bourjaily declined to decide whether there must be any evidence independent of coconspirator statements to determine that a conspiracy has been established by a preponderance of the evidence.” United States v. Fragoso, 978 F.2d 896, 901 (5th Cir.1992) (citing Bourjaily, 483 U.S. at 179, 181, 107 S.Ct. 2775). Because the Supreme Court does not require it, Summers's demand for independent evidence of a conspiracy fails. The state court's application of law accords with the mandates of the Supreme Court. Whether we agree or not, it is not contrary to, nor an unreasonable application of, the Confrontation Clause as announced by the Supreme Court. We cannot grant habeas relief.

Moreover, the state habeas court identified two items that corroborated the conspiracy finding: Spaulding's testimony regarding Summers's confession and a letter from Summers to Spaulding.FN7 Summers takes issue with the admissibility of the state's corroborating evidence as a general matter, but the Constitution does not prevent a state court from considering possibly inadmissible evidence to determine the admissibility of other evidence. See Bourjaily, 483 U.S. at 178, 107 S.Ct. 2775 (holding that a court may determine admissibility by “considering any evidence it wishes, unhindered by considerations of admissibility”) (applying Fed. R. Evid. 104(a)).

FN7. In his brief the Director identified more evidence corroborating the conspiracy finding, e.g., the testimony of both Aguirre (circumstances of meetings between Summers and Cantu) and Wilcox (prior attempts at hiring someone to murder his parents).

In addition, Summers claims that Aguirre's testimony does not prove the conspiracy. However, even if the Aguirre testimony alone is insufficient, the Supreme Court has been clear that the testimony can make up part of the admissibility analysis. See Bourjaily, 483 U.S. at 180, 107 S.Ct. 2775 (“[I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it.”). The state court found the supporting evidence, in conjunction with the statements, sufficient to prove the statements' reliability, and we are in no position to upset that finding where, as here, it is not unreasonable.

b. James Hearing & Express Findings

Summers argues that the state court's refusal to grant his motion for a James hearing-an independent hearing to determine the existence of a conspiracy-violated his due process rights. The Director points us to the record which indicates that, in response to Summers's motion for a James hearing, the state trial judge looked to the results of the trial of the co-conspirator, Cantu, in lieu of an independent hearing. As before, AEDPA bars Summers's claim because a James hearing is a product of Fifth Circuit jurisprudence, not the Supreme Court's.

While a James hearing is not mandated, Supreme Court precedent does require that “a court must be satisfied that the [co-conspirator's] statement actually falls within the definition of the Rule.” Bourjaily, 483 U.S. at 175, 107 S.Ct. 2775. Summers's appeal could be read to articulate a claim demanding such a finding. However, this claim must also fail:

As a federal habeas court, we are bound by the state habeas court's factual findings, both implicit and explicit. Under AEDPA, “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). “The presumption of correctness not only applies to explicit findings of fact, but it also applies to those unarticulated findings which are necessary to the state court's conclusions of mixed law and fact.” Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir.2001). Young v. Dretke, 356 F.3d 616, 629 (5th Cir.2004). As the state habeas court concluded, “The issues relating to [the co-conspirator statements] were raised, considered, and rejected on direct appeal.” Because the state trial court admitted Cantu's out-of-court statements under the co-conspirator exception and, later, denied Summers's motion for a directed verdict, the state trial court must have concluded that the conspiracy existed. See Fragoso, 978 F.2d at 900-01. Under AEDPA, the state court need do no more.

c. Cantu's Impeachment

Summers asserts that the state trial court's refusal to admit Cantu's purportedly impeaching statement deprived Summers of the ability to attack Cantu's credibility. This, according to Summers, violated his right to confront witnesses against him. In retort, the Director contends that Summers presented this claim, not as a constitutional claim, but as a violation of state evidentiary law. The Director is partially correct. On direct appeal, the issue was decided exclusively on the basis of state law. However, Summers resists this argument and urges this court to recognize his citations to Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and Smith v. Fairman, 862 F.2d 630 (7th Cir.1988), as stating a constitutional claim. Because of the gravity of the matter, we will assume a constitutional claim was raised.

Of the cases Summers cites, only Smith pronounces a rule that supports his claim. See Smith, 862 F.2d at 638 (“[P]rior inconsistent statements of a hearsay declarant ... were analogous to ‘otherwise appropriate cross-examination....’ ”). Under AEDPA, reliance on Smith is not enough. Because it is derived from a circuit court, not the Supreme Court, the rule in Smith is irrelevant for the purposes of our habeas review. The only question is whether or not the state trial court's exclusion of Cantu's statement was contrary to, or involved an unreasonable application of clearly established constitutional law, as announced by the Supreme Court. We hold it did not.

No doubt a hearsay declarant may be subjected to impeachment, in the same manner as a live witness. See United States v. Moody, 903 F.2d 321, 328 (5th Cir.1990). However, the confrontation clause “does not guarantee ‘cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” United States v. Smith, 930 F.2d 1081, 1088 (5th Cir.1991) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam)). The rules of evidence, to the extent they do not violate the Constitution, bind the prosecution and defense alike. Moreover, trial judges “ ‘retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits' on cross-examination.” Id. (quoting Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431). The state trial court determined that the impeachment evidence was inadmissible. The limitation imposed by the state trial court in this instance was not unreasonable.

Summers also invokes Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), where the Supreme Court established “a categorical rule barring the admission of out-of-court testimonial statements against the accused absent opportunity for cross-examination.” United States v. Holmes, 406 F.3d 337, 347 (5th Cir.2005) (discussing Crawford ). The Director counters by pointing out that Crawford is of no use to Summers because it is not retroactive. Whether retroactive or not, an issue unresolved in this circuit, see Lave v. Dretke, 416 F.3d 372, 378-79 (5th Cir.2005) (granting COA on the issue), and which we decline to reach, Crawford does not control here.

The rule in Crawford addressed only testimonial evidence, see id., 541 U.S. at 68, 124 S.Ct. 1354, and “[t]here is nothing in Crawford to suggest that ‘testimonial evidence’ includes spontaneous out-of-court statements made outside any arguably judicial or investigatory context.” Ramirez v. Dretke, 398 F.3d 691, 695 n. 3 (5th Cir.2005). As an example of “statements that by their nature were not testimonial,” the Supreme Court specifically listed “statements in furtherance of a conspiracy.” Crawford, 541 U.S. at 55, 124 S.Ct. 1354. See also id., 541 U.S. at 74, 124 S.Ct. 1354 (Rehnquist, C.J., concurring in judgment); United States v. Rueda-Rivera, 396 F.3d 678, 680 (5th Cir.2005). With respect to the statements at issue here-nontestimonial out-of-court statements in furtherance of a conspiracy-it is clear that Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), continues to control. See Crawford, 541 U.S. at 68, 124 S.Ct. 1354; Holmes, 406 F.3d at 348. The state courts' treatment of Summers's confrontation clause rights was not unreasonable.

(2) The Brady Claims

As detailed above: the Supreme Court framed “the three components or essential elements of a Brady prosecutorial misconduct claim: ‘The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’ ” Medellin v. Dretke, 371 F.3d 270, 280-81 (5th Cir.2004) (quoting Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004)).

“Evidence is ‘material’ if there is a reasonable probability that, had the evidence been disclosed, the result at the trial would have been different; a reasonable probability is one that undermines confidence in the outcome of the trial.” Duncan v. Cain, 278 F.3d 537, 539-40 (5th Cir.2002) (citing United States v. Bagley, 473 U.S. 667, 682, 685, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). Whether evidence is material under Brady is a mixed question of law and fact. Trevino v. Johnson, 168 F.3d 173, 185 (5th Cir.1999).

a. Keenan Wilcox-Rewards for Testimony

Summers claims that Wilcox received a reward for his testimony and, while testifying on the state's behalf, was a drug addict and dealer.FN8 Further, Summers says that the state failed to disclose these facts to the defendant in violation of Brady. The Director counters by referring to Wilcox's trial testimony and the state habeas court's findings. We deny habeas relief on this claim.

FN8. Summers proposes that Wilcox was the beneficiary of some quid pro quo for his testimony. To the extent that Summers argues that the drug involvement was relevant to Wilcox's credibility, we also deny relief. Both the Director and the district court identified several references to drug use and culture during Wilcox's testimony. Therefore, the jury members were aware of this aspect of his character when they determined Wilcox's credibility.

At Summers's trial, Wilcox testified that he was not expecting a reward for his testimony and that he was not promised anything to cooperate with the prosecution. In response to this testimony, Summers offers an affidavit, sworn to by Summers's attorney, regarding a conversation with Wilcox in 1997. The affidavit contains contentions that (1) Wilcox “sought, received, [sic] a reward for the information he provided to the prosecution” and (2) Wilcox “had been treated very well by the District Attorney's office,” i.e., “he had not been charged with any drug offenses.” With respect to this affidavit, the state habeas court specifically found that the affidavit “does not show that Keenan Wilcox gave false testimony at [Summers]'s trial, nor that deals were made between the State and Mr. Wilcox in exchange for his testimony.” The state habeas court went on to find “insufficient evidence” for both of the contentions in the affidavit.

Under AEDPA, the state habeas court's resolution is entitled to a presumption of correctness, unless rebutted by clear and convincing evidence. See Brown v. Dretke, 419 F.3d 365, 371 (5th Cir.2005) (citing 28 U.S.C. § 2254(e)(1)). However, this affidavit stands alone, and Summers offers no corroboration for it. Further, the evidence offered is less reliable than the recanting 1997 affidavit discussed above.FN9 As we did then, we view recanting affidavits with “extreme suspicion.” Baldree v. Johnson, 99 F.3d 659, 663 (5th Cir.1996). See also Graves v. Cockrell, 351 F.3d 143, 153 (5th Cir.2003); Spence v. Johnson, 80 F.3d 989, 1003 (5th Cir.1996); United States v. Adi, 759 F.2d 404, 408 (5th Cir.1985). The allegations in the affidavit, even if true, prove too little to carry Summers's burden. Absent is any contention that a reward came before Wilcox's testimony or that Wilcox was actually promised any special treatment.

FN9. We note that Wilcox did not make the declaration on which Summers relies. The affidavit is that of Summers's attorney recounting a conversation with Wilcox. The additional link in the chain makes the affidavit even less reliable.

Under AEDPA, this affidavit fails to upset the factual findings of the state habeas court. Because the state habeas court concluded that Wilcox's testimony did not involve a quid pro quo, there was nothing for the prosecution to disclose and, ultimately, no Brady violation. The state habeas court's conclusion that “[t]he affidavit does not undermine confidence in Mr. Wilcox's testimony, nor the verdict” is not unreasonable.

b. William Spaulding

According to Summers, the prosecution withheld two pieces of information, pertaining to Spaulding, in violation of Brady. Summers claims: (1) that law enforcement officials had threatened Spaulding and caused him to reverse his testimony and (2) that the prosecution withheld Spaulding's prison records, which indicate he had been involved with acts of deceit in prison. The district court denied habeas relief. We agree.

(i) Spaulding's “Relationship” with the Prosecution

Summers supports his claim that law enforcement officials forced Spaulding to change his story and testify for the prosecution by reference to the 1997 affidavit discussed above. See supra Part III.A.3. In Summers's view, the involvement between law enforcement and the witness should have been disclosed to the defense. The same deficiencies with the 1997 affidavit that undermined Summers's earlier claim are fatal to this Brady claim. As discussed above, the state habeas court concluded that “Spaulding's testimony at trial was not false, misleading, or incomplete,” and that there was “insufficient evidence to support a finding that Mr. Spaulding was coerced or threatened or otherwise made or improperly caused to give testimony at trial against [Summers].”

Under AEDPA, we must accept as true all reasonable fact findings of the state courts unless the petitioner disproves them by clear and convincing evidence. See Ramirez v. Dretke, 398 F.3d 691, 695 (5th Cir.2005); 28 U.S.C. § 2254(e)(1). As before, the 1997 affidavit fails to carry this burden. As a result, we must presume that the prosecution did not coerce Spaulding, leaving nothing for the prosecution to disclose under Brady.

(ii) Spaulding's Prison Records

Summers contends that the State withheld Spaulding's prison records, which purportedly contain impeachment evidence of prison discipline for forgery. The Director responds by asserting a procedural bar to this claim. According to the Director, because the claim was not properly presented to the state court on direct appeal or on collateral review, Summers cannot assert it in a federal habeas proceeding. The Director is correct.

Because of “the principles of comity, finality, and federalism” imbued in AEDPA, a federal habeas court must be “careful to limit the scope of federal intrusion into state criminal adjudications and to safeguard the States' interest in the integrity of their criminal and collateral proceedings.” Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). See also 28 U.S.C. § 2254(b)(1)(A). Accordingly, a federal habeas court, considering the claims of a state prisoner, cannot grant relief on a claim unless it has been fairly presented to or diligently pursued before the state courts. Williams, 529 U.S. at 437, 120 S.Ct. 1479 (“For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error.”). See also Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (“[E]xhaustion of state remedies requires that petitioners fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass upon and correct alleged violations of its prisoners federal rights ....” (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971))) (alteration in original) (internal quotations omitted).

The Director identifies a claim in the state habeas proceeding wherein Summers posited that “it is possible that, upon disclosure, further instances of the failure to disclose exculpatory information might be found.” Our review of the record does not reveal any other claims before the state courts that fit the issue now presented. For his part, Summers identifies no portion of the record wherein he presented this claim to the various state courts that have considered his case. Rather he merely states that he “did allege the claim and ask[ed] the state court for the opportunity to further develop” the issue. This is not enough.

“To exhaust, the applicant must fairly present the substance of his claims to the state court.” Neville v. Dretke, 423 F.3d 474, 478 (5th Cir.2005) (citing Picard, 404 U.S. at 275, 92 S.Ct. 509). The only passage identified in the state proceedings that may have been related to this claim fails in this regard. We find no argument to the state court that can be said to have presented this claim, and Summers identifies none. Because Summers failed to exhaust this alleged constitutional violation before the state courts, we cannot reach it now.FN10

FN10. Even if Summers's version of events is believed, he failed to exercise diligence in pursuing his claim. He contends that he asked the prosecutor's office for Spaulding's prison records, but, when denied, Summers failed to enforce his perceived rights and obtain a court order. See, e.g., Williams, 529 U.S. at 436, 120 S.Ct. 1479 (finding that petitioner did not pursue a Brady claim with due diligence where “it appear[ed] counsel made no further efforts to find the specific report” after the prosecutor refused to produce it). In addition, in Summers's motion to reconsider the denial of his habeas corpus application and request for evidentiary hearing, Summers failed to mention this claim or the need for an evidentiary hearing to advance or resolve it. He cannot do so now. Moreover, were we to reach the merits of this claim under 28 U.S.C. § 2254(b)(2), we would deny the claim for the reasons stated by the district court.

c. Darrell Shirlls-Additional Pending Charges

During the penalty phase, Shirlls testified on behalf of the state that Summers had threatened to have another witness killed if that witness testified against Summers. Summers brings a Brady challenge claiming that the state withheld information of pending charges against Shirlls. According to Summers, this evidence could have been used to impeach Shirlls and would have resulted in a different outcome in the penalty phase. Brady requires that the prosecution disclose evidence even if its only use is to impeach prosecution witnesses. See Felder v. Johnson, 180 F.3d 206, 212 (5th Cir.1999) (citing Bagley, 473 U.S. at 676, 105 S.Ct. 3375).

The Director contends that the evidence of pending charges, which the state purportedly suppressed, is inadmissible even as impeachment evidence and, therefore, cannot be material under Brady. In support of this contention, the Director cites Wood v. Bartholomew, 516 U.S. 1, 6, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995), where the Supreme Court found that the suppression of polygraph evidence was “not ‘evidence’ at all” because it was “inadmissible under state law, even for impeachment In sum, the Court concluded that “[d]isclosure of the polygraph results, then, could have had no direct effect on the outcome of trial, because respondent could have made no mention of them either during argument or while questioning witnesses.” Id.

We need not decide whether Wood controls here FN11 because on “the general question whether the disclosure of the evidence would have created a reasonable probability that the result of the proceeding would have been different,” Felder, 180 F.3d at 212, the answer is clear. It would not. The burden falls on Summers to convince this court “that there is a reasonable probability that the result of the trial would have been different if the suppressed documents had been disclosed to the defense.” Strickler v.Greene, 527 U.S. 263, 289, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (internal quotations omitted). See also Martin v. Cain, 246 F.3d 471, 477 (5th Cir.2001) (quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3375).

FN11. We also do not reach the issue of whether inadmissible evidence is material for Brady purposes in light of Wood. Accord Felder, 180 F.3d at 212.

As the district court observed, the state presented a wealth of evidence regarding future dangerousness during the penalty phase. Moreover, the jury and the parties were aware both that Shirlls was in prison during the time the events about which he testified took place and that he faced criminal prosecution during the time of his testimony. Whatever the effect of any nondisclosure about additional pending charges on the jury and the trial, “there [was] never a real ‘ Brady violation’ ” because any nondisclosure was not “so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.” Strickler, 527 U.S. at 281, 119 S.Ct. 1936. The state habeas court's rejection of this claim was not unreasonable.

(3) Jury Instructions

Summers contends that the jury instructions used in the penalty phase of his trial failed to meet the constitutional requirements of the Sixth, Eighth, and Fourteenth Amendments.FN12 Texas's use of special issues as a vehicle for giving effect to mitigating evidence is well established. See Coble v. Dretke, 417 F.3d 508, 523 (5th Cir.2005) (citing Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (plurality opinion) for the proposition that “the Supreme Court expressly upheld the constitutionality of the manner in which mitigating evidence is considered under the ‘special issues' submitted to juries in Texas capital cases”). Summers's specific argument is that the jury instructions used in his trial fail because they did not give the jury a mechanism to give effect to the mitigating evidence offered by the defense in the penalty phase. See Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (“ Penry I ”); Penry v. Johnson, 532 U.S. 782, 797, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (“ Penry II ”) (“[T]he key under Penry I is that the jury be able to ‘consider and give effect to [a defendant's mitigating] evidence in imposing sentence.’ ”) (alteration in original).

FN12. Summers also referenced a series of claims brought before the district court with respect to his sentence of death. However, Summers only briefed the solitary issue of whether or not the jury instructions allowed the jury to give effect to evidence presented in mitigation during the penalty phase of his trial. Summers abandoned his other claims by failing to brief them. See, e.g., Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993) (holding that appellant who sought to incorporate previously filed arguments by reference “has abandoned these arguments by failing to argue them in the body of his brief”). Appellants are required under Rule 28(a)(4) of the Federal Rules of Appellate Procedure to include “the reasons he deserves the requested relief with citation to the authorities, statutes and parts of the record relied on.” Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.1990) (internal citations and quotations omitted); Fed. R.App. P. 28(a)(4)(B). See also Hughes, 412 F.3d at 597; Lookingbill, 293 F.3d at 263 & n. 11.

Regarding the mitigating evidence, the instructions provided: “[Y]ou may consider in answering the special issues, facts and circumstances, if any, presented in evidence in aggravation, extenuation or mitigation thereof.” These instructions direct the effect of any mitigation evidence back into the special issues deliberations.FN13 As a result, the constitutionality of these jury instructions may be determined by answering the question of whether or not the special issues provided the jury with a vehicle to consider and give effect to Summers's mitigating evidence. See Penry II, 532 U.S. at 797, 121 S.Ct. 1910. If the special issues fail to adequately encompass the mitigating evidence, the instructions are unconstitutional. Id.

FN13. Because these instructions do not require the jury to change otherwise “yes” answers to “no,” they are not nullification instructions as that term is used. As a result, they do not give rise to the additional issues relating to nullification instructions discussed in Penry II, 532 U.S. at 798-804, 121 S.Ct. 1910.

Summers did not present the type of evidence that gave rise to the Penry cases (child abuse and mental retardation), Tennard v. Dretke, 542 U.S. 274, 277, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004) (low IQ), or Smith v. Texas, 543 U.S. 37, 125 S.Ct. 400, 403, 160 L.Ed.2d 303 (2004) (low IQ and parental issues). Unlike the evidence in these cases, which could not be given effect under the special issues, the evidence Summers presented during the penalty phase was self-styled as “evidence of good character and good conduct.” Summers's evidence in mitigation included testimony describing, inter alia, his nonviolent nature and general good character, his grief for his parents' death, and his ability to conform to prison life.

The district court denied Summers's claim citing both Boyd v. Johnson, 167 F.3d 907, 912 (5th Cir.1999), and Barnard v. Collins, 958 F.2d 634, 640 (5th Cir.1992), for the proposition that, in this circuit, the special issues do allow the jury to consider and give effect to mitigating evidence of a defendant's good character. Summers's contention is plain: he asserts that those cases were overruled by both Penry II and Smith. However, since the Supreme Court handed down Penry II and Smith, our circuit has continued to look to Boyd and Barnard as support for the holding that we rely on here. In Coble v. Dretke, we held:

“Evidence of good character tends to show that the crime was an aberration, which may support a negative answer to the special issue regarding the future dangerousness of the defendant.” Therefore, as this court has previously held, “[good character] evidence can find adequate expression under [the] second special issue.” 417 F.3d at 525 (quoting both Boyd, 167 F.3d at 912, and Barnard, 958 F.2d at 640, post- Smith and post- Penry II ) (internal citations omitted) (alterations in original). See also Newton v. Dretke, 371 F.3d 250, 256-57 (5th Cir.2004) (holding that mitigating evidence relating to good character may be adequately considered under the special issues post- Penry II ) (citing cases). To the extent that they hold that the Texas special issues allow juries to consider and give effect to mitigating evidence of good character, Boyd and Barnard remain sound. Indeed, the Supreme Court's analysis of this issue compels our present jurisprudence:

[W]e are not convinced that Penry could be extended to cover the sorts of mitigating evidence [Petitioner] suggests without a wholesale abandonment of Jurek and perhaps also of Franklin v. Lynaugh[, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (plurality opinion) ]. As we have noted, Jurek is reasonably read as holding that the circumstance of youth is given constitutionally adequate consideration in deciding the special issues. We see no reason to regard the circumstances of [Petitioner]'s family background and positive character traits in a different light. [Petitioner]'s evidence of transient upbringing and otherwise nonviolent character more closely resembles Jurek's evidence of age, employment history, and familial ties than it does Penry's evidence of mental retardation and harsh physical abuse. As the dissent in Franklin made clear, virtually any mitigating evidence is capable of being viewed as having some bearing on the defendant's “moral culpability” apart from its relevance to the particular concerns embodied in the Texas special issues. It seems to us, however, that reading Penry as petitioner urges-and thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issues-would be to require in all cases that a fourth “special issue” be put to the jury: “ ‘Does any mitigating evidence before you, whether or not relevant to the above [three] questions, lead you to believe that the death penalty should not be imposed?’ ” The Franklin plurality rejected precisely this contention, finding it irreconcilable with the Court's holding in Jurek, and we affirm that conclusion today. Graham v. Collins, 506 U.S. 461, 476-77, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (internal citations omitted).

Summers only contends that his evidence of good character could not be considered and given effect under the jury instructions used in his penalty phase. His position is foreclosed under our precedent in both Boyd and Barnard, which remain sound, and Coble, which relies on those cases. In light of this authority, habeas relief is denied.

IV. CONCLUSION

For the reasons stated above, the application for additional COAs is DENIED and the district court's denial of habeas relief is AFFIRMED.