Executed September 20, 2007 06:18 p.m. CDT by Lethal Injection in Texas
41st murderer executed in U.S. in 2007
1098th murderer executed in U.S. since 1976
25th murderer executed in Texas in 2007
404th murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Clifford Allan Kimmel
W / M / 23 - 32
W / F / 22
W / F / 22
W / M / 29
Kimmel v. Quarterman, 199 Fed.Appx. 338 (5th Cir. 2006) (Habeas).
A bacon cheeseburger with jalapenos, french fries, two slices of apple pie with vanilla ice cream and sweetened iced tea.
Texas Department of Criminal Justice - Executed Offenders (Clifford Kimmel)Inmate: Kimmel, Clifford Allan
Prior Prison Record: #785227 a 6 year sentence Burglary of a Habitation; 11/25/98 released on Mandatory Supervision.
Texas Attorney General
Thursday, September 13, 2007
Media Advisory: Clifford Kimmel scheduled for execution
AUSTIN – Texas Attorney General Greg Abbott offers the following information about Clifford Allan Kimmel, who is scheduled to be executed after 6 p.m.Thursday, September 20, 2007, for the Feb. 2000 capital murders of three people in a San Antonio apartment. A summary of the evidence presented at trial follows.
FACTS OF THE CRIME
On the evening of April 9, 1999, Kimmel and accomplice Derrick Murphy went to the apartment of their acquaintance, Rachel White, and asked to use the phone. Murphy entered the apartment and pointed a gun at White and two guests, Susan Halverstadt and Brett Roe. After tying up the victims’ hands with rope, Murphy took White into the bathroom and demanded to know where she kept her money. When White resisted, Kimmel injected her in the arm with a syringe containing cleaning fluid. Murphy then smothered White with a pillow until she stopped thrashing, and then he cut her neck.
Thereafter, Kimmel injected Roe with cleaning fluid. When Roe attempted to run for the front door, Kimmel and Murphy tackled him and Kimmel stabbed him in the chest. Murphy took the knife from Kimmel, cut Roe’s throat, and stabbed him multiple times while Kimmel held his legs. Murphy then stabbed Halverstadt.
Kimmel and Murphy then returned to the bathroom where White was still alive on the floor gasping for air, and carried her from the bathroom into the bedroom. According to Kimmel, White pleaded with him, “[h]elp me, Clifford, I’m dying. Why are you doing this?” Kimmel only responded, “I don’t know what to tell you, because I don’t know why.”
Murphy then sat on White’s chest and stabbed her in the chest and throat. Murphy and Kimmel took several items from White’s apartment including, a stereo, a VCR, White’s purse, Roe’s wallet, a wooden jewelry box, a bong, a silver letter opener, and a collection of CDs. They later sold much of the stolen property, and used White’s credit card at gasoline stations and a hotel, where the duo had a party the next night.
All three victims died as a result of the injuries they sustained that night.
On May 18, 1999, Kimmel was arrested on a parole revocation warrant. Initially he denied any role in the murders, but two days later, Kimmel admitted to participating in the killings.
August 11, 1999 -- A Bexar County grand jury indicted Clifford Kimmel for capital murder.
February 14, 2000 -- Kimmel pled guilty to the charges contained in the indictment.
February 18, 2000 -- Following a separate punishment hearing, the jury sentenced Kimmel to death.
November 7, 2001 -- The Texas Court of Criminal Appeals affirmed Kimmel’s conviction and sentence.
November 15, 2001 -- Kimmel filed an application for writ of habeas corpus with the state trial court.
May 20, 2002 -- An evidentiary hearing was held in the state trial court.
October 15, 2003 -- The Texas Court of Criminal Appeals adopted the trial court’s recommendation and denied Kimmel’s state habeas application.,br>September 15, 2004 -- Kimmel filed a federal petition for writ of habeas corpus in a San Antonio federal district court.
August 16, 2005 -- The federal district court denied Kimmel the relief requested in his federal habeas petition, and also denied Kimmel a certificate of appealability on each claim.
November 22, 2005 -- Kimmel filed an application for certificate of appealability with the 5th U.S. Circuit Court of Appeals.
August 29, 2006 -- The 5th Circuit Court denied Kimmel’s request for COA.
January 25, 2007 -- Kimmel petitioned the U.S. Supreme Court for a writ of certiorari.
April 16, 2007 -- The Supreme Court denied Kimmel’s petition for certiorari.
April 30, 2007 -- The trial court issued an order setting Kimmel’s execution date for September 20, 2007.
PRIOR CRIMINAL HISTORY
In addition to presenting extensive testimony regarding the details of the brutal murders described above, including Kimmel’s own confession, the State presented evidence at the punishment phase of trial showing that Kimmel: (1) participated in the armed robbery of a fast-food restaurant with Murphy and two others a few days before the triple homicide; (2) was arrested twice as a juvenile in Bexar County for burglary and shoplifting and received probated sentences; (3) was again arrested as a juvenile and adjudicated guilty on a charge of indecency with a child and received another probated sentence; (4) was arrested as an adult in February 1993 for burglary of a habitation in Guadalupe County and received another probated sentence; (5) had a motion to revoke his probation filed against him in July 1993 for carrying a loaded handgun and being arrested for criminal trespass; (6) a motion to revoke his probation was filed against him in August 1994 for testing positive for marijuana use, failing to report multiple times to his probation officer, and for failing to fulfill other requirements of his probation; (7) attempted to break into his parents’ home in March 1995 and was later arrested for absconding from probation; (8) was placed in the Bastrop County Restitution Center in August 1995 but constantly misbehaved, then disappeared from that facility in July 1996 after officials found evidence that he had committed a burglary; (9) had another motion to revoke his probation filed against him in November 1996 and was arrested the following month; (10) had his probation revoked in April 1997 and was sentenced to serve six years in prison; (11) was released on parole in November 1998, but disappeared from the halfway house less than two months later after testing positive in a urinalysis test for cocaine and marijuana; (12) was arrested on a parole revocation warrant in May 1999; and (13) threatened to assault a Bexar County Adult Detention Center officer on September 8, 1999, after contraband was found in his cell.
"Convicted killer executed for triple slaying in San Antonio," by Michael Graczyk. (Associated Press September 20, 2007)
HUNTSVILLE, Texas — His appeals exhausted, convicted killer Clifford Kimmel was put to death Thursday for his part in a triple slaying eight years ago in San Antonio where two of his victims were injected with cleaning fluid before they were fatally stabbed. Kimmel, 32, pleaded guilty to capital murder just as he was about to go on trial. A Bexar County jury was left to decide between a life prison term and a death sentence. They chose death.
Kimmel had nothing to say when asked by a warden if he had a final statement. "No sir," he replied.
Among the people watching his death were his wife and parents, and the mother and sisters of two of his victims. He looked only briefly at the victims' relatives before closing his eyes as the drugs took effect. He was pronounced dead nine minutes later at 6:18 p.m. CDT.
Kimmel was condemned for the deaths of Rachel White and Susan Halverstadt, both 22-year-old topless dancers, and a friend of theirs, Brent Roe, 29. Derek Murphy, an accomplice with Kimmel in the early morning hours of April 9, 1999, received a life prison sentence for his role in the slayings.
Murphy and Kimmel were accused of using a syringe containing a bathroom cleanser to inject two of the victims and using a Bowie knife to fatally stab all three at White's apartment.
The two men were arrested about six weeks later after detectives tracked purchases made with a credit card stolen from one of the victims. The bodies were found more than three days after the attacks when friends became concerned that none of them had been seen or heard from and asked an apartment complex worker to check on them. "They were just college girls who figured out they could make some money dancing because they were good looking," Jim Wheat, a prosecutor at Murphy's trial, recalled. "Murphy or Kimmel had a friend who knew these girls and had taken them to the apartment once and they saw they had a bunch of electronics. So they went back a few days later to steal them."
Kimmel had been out of prison about six months, released on mandatory supervision after serving about 1 1/2 years of a six-year term for burglary.
At his trial, Kimmel's lawyers argued unsuccessfully for a life sentence, saying Kimmel had a long-term drug problem and presenting witnesses who said Kimmel was repentant. He and Murphy got in the apartment under the guise of wanting to use the phone. "One of them said they injected (the victims) with cleaning fluid," Wheat said. "They thought that would cause them to die. We really couldn't prove it because there was no way to test the blood and find cleaning fluid."
Then the victims were stabbed. White had numerous wounds to the neck and chest. Roe died of wounds to his neck, chest and abdomen. Halverstadt had two wounds to her neck. The pair left with White's stereo, video cassette recorder and her purse, Roe's wallet, a jewelry box, a bong, a silver letter opener and some music CDs. They sold much of the stolen property and used White's credit card.
A defense psychiatrist testified Kimmel had been a heavy user of methamphetamines since he was 13 or 14. He dropped out of school in the 11th grade and had numerous arrests as a juvenile. As an adult, he was convicted of burglary and placed on probation, which he violated. In April 1997, he was sentenced to six years in prison, was released after 19 months but disappeared from a halfway house less than two months later after testing positive for cocaine and marijuana.
Murphy also is serving a second life term for an armed robbery he, Kimmel and two others were accused of committing three days before the triple slaying.
Kimmel's lethal injection was the 25th of the year in the nation's busiest capital punishment state. He had no 11th-hour appeals. The U.S. Supreme Court in April refused to review his case. This week, the Texas Board of Pardons and Paroles voted unanimously against his commutation request.
Two more executions are set for next week in Texas. The first is Michael Wayne Richard, 49, set to die Tuesday for the 1986 rape-slaying of Marguerite Dixon during a burglary of her home in Hockley northwest of Houston. Two days later, a 28-year-old Dallas man, Carlton Turner, faces death for killing his parents in 1998.
"Texas executes man for 1999 triple murder." (Thu Sep 20, 2007 9:35pm EDT)
HUNTSVILLE, Texas (Reuters) - Texas executed a man on Thursday who confessed to killing three people in a 1999 robbery, including two who were injected with cleaning fluid before they were stabbed to death. Clifford Kimmel, 32, was the 25th person executed this year and the 404th in Texas since the state resumed the death penalty in 1982, six years after the U.S. Supreme Court lifted a national capital punishment ban. Both totals lead the nation.
Kimmel was condemned for the April 9, 1999, murder of Rachel White, 22, Susan Halverstadt, 22, and Brett Roe, 29, in San Antonio. Prosecutors said Kimmel and accomplice Derek Murphy knew White and asked to enter her apartment to use the phone. Once inside, they injected White and Roe with cleaning fluid, then stabbed all three victims repeatedly in the chest and throat. They stole a number of items, including a credit card they used to buy beer.
Kimmel pleaded guilty to all three murders in February 2000 and was sentenced to death by a jury after a punishment hearing. Murphy was sentenced to life in prison.
Kimmel made no last statement before receiving a lethal injection while strapped to a gurney in the Texas death chamber. For his last meal, Kimmel requested a bacon cheeseburger with jalapenos, french fries, two slices of apple pie with vanilla ice cream and sweetened iced tea.
Texas currently has four more executions scheduled this year, including two more this month. Two other executions are already scheduled for 2008.
San Antonio Express-News
"Bexar slayer of 3 dies at Huntsville," by Brian Chasnoff. (Web Posted: 09/20/2007 10:00 PM CDT)
HUNTSVILLE — A Bexar County killer was executed by lethal injection Thursday, more than eight years after he injected cleaning fluid into the arms of victims he then helped to slay with a hunting knife. The chemicals began flowing at 6:09 p.m. Clifford Kimmel, 32, who offered no final statement, was pronounced dead nine minutes later, marking the 25th execution in Texas this year.
Kimmel admitted participating in the murders of Rachel White and Susan Halverstadt, both 22, and Brett Roe, 29. He pleaded guilty to the slayings, and a jury sentenced him to death four days later. His appeals exhausted, the Texas Board of Pardons and Paroles this week unanimously rejected his plea for a life sentence.
Moments before closing his eyes, Kimmel turned to look at relatives of White and Halverstadt. Asked if he wished to say something, he replied, "No, sir."
Kimmel and an accomplice, Derrick Murphy, had been using speed for days without sleeping, according to a prosecutor at his trial, when they decided to burglarize the apartment of White, a 22-year-old exotic dancer known to loved ones as "little ray of sun." The pair lurked outside her Northwest Side apartment for about five hours, carrying supplies that included a syringe, nylon rope, cleaning fluid and a hunting knife. After several people left, Murphy and Kimmel knocked on the door and asked White for a phone and water. Halverstadt and Roe also were inside.
As White — "friendly to a fault," according to her sister — turned around to get the water, Murphy pulled out a revolver and ordered everyone's hands bound with the rope. Although two of the victims offered their wallets, Murphy and Kimmel stabbed everyone to death with the hunting knife. In his confession, Kimmel said he injected Roe and White with cleaning fluid before they were killed.
Murphy and Kimmel ransacked the apartment, taking, among other possessions, a stereo, a VCR and one of White's credit cards. They used the card to buy beer and threw a party in a motel room the next night, court records stated. Police tracked the pair down about a month later after tracing receipts from the credit card.
Kimmel initially denied knowing about the murders. In his eventual confession to police, given after Murphy implicated him in the slayings, Kimmel apologized to families of the victims and said the murders would haunt him forever.
A psychiatrist testified at the trial that Kimmel, then 24, had been using heavy drugs since he was about 13. The grisly slayings, he said, likely were fueled by Kimmel's addiction to speed. That didn't stop a jury from finding that Kimmel would be a future danger to society and sentencing him to death. Murphy received three life sentences after a jury found evidence of mitigating circumstances, including a troubled childhood.
Kimmel had run afoul of the law more than once as a juvenile, arrested for burglary, shoplifting and indecency with a child. Authorities arrested him for another burglary as an adult, and he was put on probation. But motions to revoke his probation were filed after Kimmel failed a drug test, was arrested for criminal trespassing and suspected in a burglary.
After serving less than two years of a six-year sentence for violating terms of his probation, Kimmel was released on parole in November 1998. The murders occurred about five months later.
Texas Execution Information Center by David Carson.
Clifford Allan Kimmel, 32, was executed by lethal injection on 20 September 2007 in Huntsville, Texas for killing and robbing three people in an apartment.
On 9 April 1999, Kimmel, then 23, and Derek Murphy, 24, went to the apartment of an acquaintance, Rachel White. They waited outside for several people to leave. They then came to the door and asked White if they could use her phone. White let them in. Murphy then pointed a gun at White, 22, and her two remaining guests, Susan Halverstadt, 22, and Brett Roe 29. After tying the victims' hands with rope, Murphy took White into the bathroom and asked where her money was. When White resisted, Kimmel injected her in the arm with a syringe containing Tilex, a household bathroom cleaning fluid. Murphy then smothered White with a pillow until she stopped thrashing, then he cut her neck. Next, Kimmel injected Roe with Tilex. When he attempted to run for the front door, Kimmel and Murphy tackled him. Kimmel then stabbed Roe in the chest. Murphy then took the knife from Kimmel, cut Roe's throat, and stabbed him multiple times while Kimmel held his legs. Murphy then stabbed Halverstadt. The assailants then returned to the bathroom, where White was lying on the floor, gasping for air. They carried her into the bedroom, then Murphy set on her chest and stabbed her in the chest and throat. The men then stole a stereo, VCR, White's purse, Roe's wallet, a jewelry box, and some other items.
The victims' bodies were not discovered until three days later, after concerned friends asked the apartment manager to check on them. Detectives tracked purchases made with one of the victim's credit cards to Kimmel and Murphy. Kimmel was arrested five weeks later on a parole revocation warrant. He initially denied any involvement in the murders, but two days later, he confessed to them in writing.
Kimmel, who pleaded guilty, had a lengthy juvenile and adult criminal history including multiple home burglaries and parole violations. He also had arrests for indecency with a child, shoplifting, unlawfully carrying a weapon, and criminal trespass. After his probation for a home burglary conviction was revoked in April 1997, he was sent to prison on a six-year sentence, but was paroled again in November 1998. Evidence presented at his punishment hearing indicated that he, Murphy, and two others robbed a fast food restaurant a few days before the triple murder.
Kimmel stated that after he and Murphy carried Rachel White into the bedroom, she pleaded, "Help me, Clifford, I'm dying. Why are you doing this?" Kimmel answered, "I don't know what to tell you, because I don't know why." A jury convicted Kimmel of capital murder in February 2000 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in November 2001. All of his subsequent appeals in state and federal court were denied. Derek Murphy was convicted of capital murder and sentenced to life in prison.
At his execution, Kimmel declined to make a last statement. After the lethal injection was started, he looked briefly at the victims' relatives, then closed his eyes. He was pronounced dead at 6:18 p.m.
Clifford Kimmel and another man, Derek Murphy, were arrested for the April 1999 fatal stabbings of Rachel White and Susan Halverstadt, both 22 and dancers at a topless bar, and Brett Roe, 29. Their bodies were found in a San Antonio apartment. Kimmel, who had a previous burglary conviction, was arrested about six weeks later for a parole violation and confessed to police. Court records show he and Murphy injected two of their victims with the cleaner Tilex to drug them before they robbed them. Kimmel pleaded guilty to capital murder, and a jury decided he should be executed. A defense psychiatrist testified at his trial the Kimmel, now 31, had been a heavy user of methamphetamines since he was 13 or 14. Kimmel's companion, Murphy, is serving a life prison term for his role in the slayings.
National Coalition to Abolish the Death Penalty
Clifford Kimmel, September 20, TX
Do Not Execute Clifford Kimmel!
On September 20, 2007, the state of Texas is set to execute Clifford Kimmel for the April 1999 murders of Rachael White, Susan Halverstadt and Brett Roe.
The state of Texas should not execute Kimmel for his role in this crime. Executing Kimmel would violate the right to life as declared in the Universal Declaration of Human Rights and constitute the ultimate cruel, inhuman and degrading punishment. Clifford admitted to his role in the crime when arrested by the police for an unrelated crime. The defense psychiatrist testified that Kimmel had been an avid methamphetamine user since the age of 14. Furthermore Kimmel’s co-conspirator in this crime was given a lighter sentence of life in prison while Kimmel was sentenced to die.
Please write to Gov. Rick Perry on behalf of Clifford Kimmel!
Kimmel v. Quarterman, 199 Fed.Appx. 338 (5th Cir. 2006) (Habeas).
Background: After conviction and death sentence in state court for capital murder were affirmed on direct appeal and state habeas corpus petition was denied, petitioner filed federal petition for writ of habeas corpus. The United States District Court for the Western District of Texas denied petition and then denied petitioner's application for certificate of appealability (COA).
Holdings: Petitioner then sought COA with the Court of Appeals, Carl E. Stewart, Circuit Judge, which held that:
(1) petitioner was not entitled to appeal denial of habeas corpus petition based on grand jury claim that trial court found to be procedurally barred;
(2) petitioner was not entitled to appeal denial of petition based on claim that confession was involuntary;
(3) petitioner was not entitled to appeal denial of petition based on alleged Brady violation; and
(4) petitioner was not entitled to appeal denial of habeas corpus petition based on unsupported claim that prosecutor knowingly used false testimony. Application for COA denied.
CARL E. STEWART, Circuit Judge:
(Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.)
Clifford Allen Kimmel was indicted on six counts of capital murder for the murders of three persons. Kimmel pleaded guilty and was subsequently sentenced to death. The district court denied Kimmel's petition for habeas relief and denied his application for a Certificate of Appealability (“COA”). Kimmel seeks a COA from this court on four grounds. For the following reasons, we deny the application.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the evening of April 9, 1999, Kimmel and Derrick Murphy went to the apartment of their acquaintance, Rachel White, planning to commit robbery. They waited for several people to leave, and then approached the apartment and asked to use the phone. Murphy entered the apartment and pointed a gun at White and her two remaining guests, Susan Halverstadt and Brett Roe. After securing the victims' hands with rope, Murphy took White into the bathroom and demanded to know where she kept her money. When White resisted, Murphy injected her in the arm with a syringe containing cleaning fluid. Murphy then smothered White with a pillow until she stopped thrashing, and then he cut her neck. Thereafter, Kimmel injected Roe with cleaning fluid. When Roe attempted to run for the front door, Kimmel and Murphy tackled him and Kimmel stabbed him in the chest. Murphy took the knife from Kimmel, cut Roe's throat, and stabbed him multiple times while Kimmel held his legs. Murphy then stabbed Halverstadt. Kimmel and Murphy carried White from the bathroom into the bedroom and Murphy stabbed her in the chest and throat. Murphy and Kimmel took several items from White's apartment including, inter alia, a stereo, a VCR, White's purse, Roe's wallet, a wooden jewelry box, a silver letter opener, and a collection of CDs. They later sold much of the stolen property, and used White's credit card at gasoline stations and a hotel. All three victims died as a result of the injuries they sustained that night.
On May 18, 1999, Kimmel was arrested on a parole revocation warrant. Following his arrest, he gave a written statement to the police in which he denied any personal involvement in the murders. But two days later, after Murphy gave police an inculpatory statement, Kimmel gave a second written statement in which he admitted to participating in the murders. On August 11, 1999, a grand jury indicted Kimmel on six counts of capital murder. More specifically, counts one, two, and three of the indictment charged Kimmel with having intentionally killed Rachel White, Susan Halverstadt, and Brett Roe by stabbing and cutting each of them with a knife while in the course of robbing each of these victims. Counts four, five, and six charged Kimmel with having intentionally killed White, Halverstadt, and Roe by cutting and stabbing each of them with a knife all in the same criminal transaction.
On February 14, 2000, Kimmel pleaded guilty. The punishment phase of the trial began on the same day. On February 18, 2000, the jury returned its verdict, finding separately with regard to each murder victim that (1) Kimmel posed a future danger; (2) he actually caused the death of the decedent or intended to kill the deceased, or anticipated that a human life would be taken; and (3) there were insufficient mitigating circumstances to warrant a sentence of life imprisonment rather than a death sentence. Accordingly, Kimmel was sentenced to death.
The Texas Court of Criminal Appeals affirmed Kimmel's conviction and sentenced him on November 7, 2001. Kimmel v. State, No. 73,786 (Tex.Crim.App. Nov. 7, 2001). Kimmel did not petition the Supreme Court for a writ of certiorari. On November 15, 2001, Kimmel filed a state habeas petition. The Texas Court of Criminal Appeals denied relief, adopting the trial court's findings of fact and conclusions of law on October 15, 2002. Ex parte Kimmel, No. 57,028-01 (Tex.Crim.App. Oct. 15, 2003).
On September 15, 2004, Kimmel filed the instant federal habeas petition urging six grounds for relief. The district court denied relief on all six grounds and denied Kimmel's request for a COA. On appeal, Kimmel requests a COA from this court on four issues.
II. STANDARD OF REVIEW
Under Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petitioner must obtain a COA before he can appeal the district court's denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner must demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Hall v. Cain, 216 F.3d 518, 521 (5th Cir.2000) (citing Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “ ‘any doubts as to whether a COA should issue must be resolved in [petitioner's] favor.’ ” Hughes v. Dretke, 412 F.3d 582, 588 (5th Cir.2005), cert. denied, --- U.S. ----, 126 S.Ct. 1347, 164 L.Ed.2d 60 (2006) (alteration in original) (quoting Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000)). Accordingly, “[w]e look to the District Court's application of AEDPA to petitioner's constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id.
Kimmel seeks a COA on the following claims: (1) his Sixth and Fourteenth Amendment right to have a fair cross section of the community on panels from which grand juries are chosen was violated; (2) his confession was obtained in violation of the Fifth, Sixth, and Fourteenth Amendments; (3) his due process rights were violated when the State suppressed exculpatory and impeachment evidence; and (4) his due process rights were violated when the State knowingly presented perjured testimony.
The district court concluded that the first two claims were procedurally defaulted. On habeas review, a federal court may not review a claim for the denial of a federal right if the last state court to consider the claim expressly based its denial of relief on an independent and adequate state law ground. Finley v. Johnson, 243 F.3d 215, 218 (5th Cir.2001). “To satisfy the ‘independent’ and ‘adequate’ requirements, the dismissal must ‘clearly and expressly’ indicate that it rests on state grounds which bar relief, and the bar must be strictly or regularly followed by state courts, and applied to the majority of similar claims.” Id. This bar applies equally to substantive and procedural grounds. Id. “A procedural default will be excused ... if ‘the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law’ or if the default would work ‘a fundamental miscarriage of justice.’ ” Busby v. Dretke, 359 F.3d 708, 718 (5th Cir.2004) (quoting Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).
Kimmel asserts that his Sixth and Fourteenth Amendment right to have a fair cross section of the community on panels from which grand juries are chosen was violated because Hispanics were disproportionately excluded from the pool of eligible persons to serve on grand juries in Bexar County, Texas. He asserts that Hispanics were systematically underrepresented on grand juries in Bexar County from 1990 through 2000. The district court concluded that this claim was procedurally defaulted for two reasons: first, Kimmel failed to raise a challenge to the composition of the grand jury through a timely pretrial motion to quash the indictment, and second, Kimmel failed to raise this claim on direct appeal.
Kimmel has not argued, much less demonstrated, cause for the default or prejudice. Further, Kimmel failed to raise this issue on direct appeal. Soria v. Johnson, 207 F.3d 232, 249 (5th Cir.2000). Accordingly, Kimmel failed to show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Hall, 216 F.3d at 521. Further, under Texas law, “a defendant must raise a challenge to the composition of the grand jury at the earliest point possible.” Ratcliff v. Estelle, 597 F.2d 474, 476 (5th Cir.1979). There is no dispute that Kimmel failed to raise the claim by a pre-trial motion to quash. Reasonable jurists would not debate the district court's conclusion that this claim is procedurally defaulted; therefore, Kimmel is not entitled to a COA on this issue. Neville v. Dretke, 423 F.3d 474, 478 (5th Cir.2005).
Kimmel also argues that his confession was involuntary because he was under the influence of a drug prescribed at the jail, and thus, the confession was obtained in violation of the Fifth, Sixth, and Fourteenth Amendments. Kimmel explains that, before his arrest, a crisis center prescribed Prozac for his suicidal thoughts; accordingly, he began taking Prozac on May 6, 1999, and continued taking it until his arrest on May 18, 1999. After his arrest, the jail personnel began treating him for depression with doxepin hydrochloride. He contends that the combination of the two medications prevented him from being able to knowingly and intelligently waive his rights before giving the May 20, 1999, statement. Therefore, he contends that the police did not obtain a valid waiver of his rights before eliciting the incriminating statements and the use of this involuntary confession at his trial violated his due process rights.
The district court concluded that Kimmel procedurally defaulted this claim by failing to make a timely objection to the admission of his second confession on the ground that he was intoxicated. In Texas, “[i]n order to complain on appeal about the admissibility of a confession there must have been an objection thereon in the trial court, and the objection must have called the attention of the trial court to the particular complaint raised on appeal.” Little v. State, 758 S.W.2d 551, 564 (Tex.Crim.App.1988). The state habeas court concluded that this claim was not preserved for review because Kimmel failed to raise it at his suppression hearing or before the trial court. Kimmel also failed to raise this claim on direct appeal. Kimmel does not dispute this finding nor does he attempt to show cause and prejudice for the default. Accordingly, reasonable jurists would not debate whether Kimmel states a valid claim of the denial of a constitutional right, nor would reasonable jurists debate the district court's conclusion that the claim is procedurally defaulted. Hall, 216 F.3d at 521. For these reasons, Kimmel is not entitled to a COA. Hughes, 412 F.3d at 597.
Kimmel's third and fourth claims relate to notes taken by the State's prosecutor, Juanita Vasquez-Gardner, during conversations she had with two experts regarding the significance of Kimmel's tattoos. The tattoos include an “A” with a circle around it above the word “Chaos” on Kimmel's shoulder; the word “White” on one of his forearms; and the word “Pride” on the other forearm. Kimmel argues that (1) the prosecution failed to inform the court or defense counsel that the experts did not know the meaning of the tattoos and (2) the prosecution suggested to a defense witness that the tattoos signified something other than what the experts had suggested.
As part of her investigation into the meaning of the tattoos, Vasquez-Gardner interviewed Royce Smithey and Bill Cheatham, Department of Corrections experts on prison gangs. Smithey told Vasquez-Gardner that the A with a circle around it could refer to the Aryan Brotherhood/Nation, but he was just guessing; and Cheatham indicated that the tattoo may very possibly be an Aryan Circle, but there was no indication that Kimmel had ever been suspected or monitored as being a part of the Aryan gang. Vasquez-Gardner's notes also indicate that Smithey stated the words “white pride” may or may not mean anything, and may or may not signify gang membership. Vasquez-Gardner also consulted Rocky Dyer of the San Antonio Police Department. Dyer was unable to explain how the tattoos related specifically to Kimmel, but did provide general information as to what the symbols might mean, including that the circled A could symbolize anarchy. Vasquez-Gardner continued to investigate the meaning of the tattoos on the internet and came to believe, based on her conversation with Dyer and articles she found on the internet, that the symbol represented anarchy.
During the punishment phase of trial, the defense called Dr. Edward Gripon, a psychiatrist, who opined that it was unlikely that Kimmel would commit criminal acts of violence that would constitute a continuing threat to society. On cross-examination, the prosecutor questioned Dr. Gripon regarding Kimmel's tattoos. Specifically, the prosecutor questioned the doctor regarding whether the circled A tattoo signified anarchy. Outside the presence of the jury, the prosecutor asked Dr. Gripon whether Kimmel had informed Dr. Gripon that the symbol signified anarchy or whether Dr. Gripon knew of that meaning; Dr. Gripon answered “No.”
In the presence of the jury, she asked Dr. Gripon whether Kimmel had tattoos that indicated anarchy and Dr. Gripon answered “Yes. That's what I think is supposed to be the meaning of them, yes.” The prosecutor also referenced an incident during which Kimmel referred to a prison guard by a racial epithet and then questioned the doctor regarding Kimmel's “white pride” tattoos. She asked whether the anarchist tattoos could be interpreted to mean that someone does not want to abide by the laws and rules of society. Dr. Gripon responded that this was a possible interpretation, but that one must be careful in interpreting tattoos because they are often an expression of extremism, not necessarily a clear indicator of what a person believes.
Kimmel argues that the prosecution failed to disclose material evidence favorable to the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, he argues that the prosecution failed to inform the defense or the court that the State's experts expressed doubts about the meaning of the tattoos or that they suggested a different meaning.
To establish a Brady violation, Kimmel must prove that “(1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant because it was either exculpatory or impeaching; and (3) the evidence was material.” United States v. Edwards, 442 F.3d 258, 264 (5th Cir.2006). “ ‘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.' ” *344 Summers v. Dretke, 431 F.3d 861, 878 (5th Cir.2005), cert. denied, --- U.S. ----, 127 S.Ct. 353, 166 L.Ed.2d 69 (2006) (quoting Duncan v. Cain, 278 F.3d 537, 539-40 (5th Cir.2002)).
“There is no duty to furnish a defendant with exculpatory evidence that is fully available to the defendant though the exercise of reasonable diligence.” Gibbs v. Johnson, 154 F.3d 253, 256 (5th Cir.1998). As the State argues, Kimmel was in the best position to know the significance of his own tattoos. Moreover, nothing prevented Kimmel's counsel from conducting research regarding the significance of the tattoos. “Although exculpatory and impeachment evidence fall within the purview of Brady, neutral evidence does not.” United States v. Dillman, 15 F.3d 384, 390 (5th Cir.1994). Neither officer offered a conclusive opinion as to the significance of the tattoos, and Kimmel has not shown how this information would have impeached Dr. Gripon's testimony. Cf. Id. (“[The witness]'s statement-to the effect that she did not remember the meeting-is neutral, not exculpatory or impeaching in nature.”). Moreover, Kimmel has not shown that the evidence was material, i.e., that there is a reasonable probability that the result of the punishment phase of trial would have been different. Miller v. Dretke, 404 F.3d 908, 916 (5th Cir.2005) (“[F]or Brady purposes, evidence is material if there is a reasonable probability that, had the evidence been disclosed, the result would have been different.”). Further, defense counsel was aware that Dr. Gripon had previously indicated that he was unaware of the tattoo's meaning; accordingly, on redirect, defense counsel could have addressed Dr. Gripon's knowledge of the tattoo, or lack thereof, and impeached or clarified his testimony without the aid of the officers' statements. Reasonable jurists would not debate the district court's rejection of this claim; accordingly, Kimmel is not entitled to a COA.
Kimmel also argues that the prosecutor knowingly used false testimony in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), by “duping” Dr. Gripon into agreeing that the tattoos signified anarchy, and failing to alert the trial judge that this testimony was false. Kimmel contends that the prosecutor failed to inform the court that she was guessing about the tattoo signifying anarchy or that the experts had suggested a different meaning. He argues that, outside the presence of the jury, Dr. Gripon indicated that he did not know the significance of the tattoos; however, in front of the jury, the witness was duped into agreeing with the prosecutor that the tattoos signified anarchy because the prosecution previously suggested this meaning.
“In order to establish a Napue violation, the defendant must show (1) the statements in question are actually false; (2) the prosecution knew that the statements were false; and (3) the statements were material.” United States v. Haese, 162 F.3d 359, 365 (5th Cir.1998). Kimmel has neither argued nor demonstrated that Dr. Gripon's testimony was in fact false; instead, he contends that the prosecutor failed to inform the court that two of her experts did not know what the tattoos signified or that she was guessing. This does not show that the testimony is false, but rather that others did not know the meaning of the tattoos. Cf. United States v. Wall, 389 F.3d 457, 473 (5th Cir.2004), cert. denied, 544 U.S. 978, 125 S.Ct. 1874, 161 L.Ed.2d 730 (2005) (“Wall has not established that McDowell's testimony was actually false. He has merely shown that Ristau's testimony would establish a conflict in the testimony, a far cry from showing*345 that it was ‘actually false.’ ”). As noted above, defense counsel could have questioned Dr. Gripon on the accuracy of his testimony regarding the meaning of the tattoos on redirect, but chose to not use this opportunity. Because Kimmel has not demonstrated that the testimony was in fact false, the district court's conclusion that he was not entitled to relief on this claim is not debatable among reasonable jurists; consequently, Kimmel is not entitled to a COA.
Kimmel has failed to show that jurists of reason could debate the district court's resolution of his habeas petition. Accordingly, his application for a COA is DENIED.