author: KING, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Adolfo ORTEGA, Defendant-Appellant
    No. 16-50301
    United States Court of Appeals, Fifth Circuit.
    FILED April 25, 2017

      Joseph H. Gay, Jr., Ellen A. Lockwood, Assistant U.S. Attorneys, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
    Michael Clark Gross, James Alexander Norman Smith, Gross & Esparza, P.L.L.C., San Antonio, TX, for Defendant-Appellant.
    Before KING, JOLLY, and PRADO, Circuit Judges.
   KING, Circuit Judge:

Defendant-Appellant Adolfo Ortega pleaded guilty to charges of possession with intent to distribute 500 grams or more of cocaine and possession of a firearm in furtherance of a drug trafficking crime. On appeal, Ortega argues that the district court erred in denying his motion to compel disclosure of the identities of confidential informants and his motion to suppress. Ortega also argues that the factual basis of his guilty plea was insufficient to support the firearm conviction. Because additional fact findings related to the motion to suppress are necessary, we VACATE the convictions and sentences, and REMAND the case for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Search Warrant

On April 19, 2013, San Antonio Police Officer Matthew Parkinson secured a state search warrant for the home of Defendant-Appellant Adolfo Ortega, who was suspected by Parkinson to be trafficking cocaine. The search warrant was supported by an affidavit signed by Parkinson. In his affidavit, Parkinson explained that he had received information from a confidential informant about Ortega’s alleged cocaine possession:

Affiant did on the 18th of April, 2013 receive information from a credible and reliable person who has on previous occasions given Affiant information regarding the trafficking and possession of controlled substances which has proven to be true and correct but whose identity cannot be revealed for security reasons.
The said credible and reliable person stated that they did within the last 48 [hours] see a controlled substance, to wit Cocaine, in the possession of the aforesaid Defendant! ] Ortega ... inside the location at [the address for Ortega’s house].

Parkinson also stated in his affidavit that surveillance of Ortega’s house revealed that an unspecified number of individuals would occasionally arrive and enter Ortega’s house for short periods of time or engage in a hand-to-hand transaction with someone from the house, and “[t]hese types of behaviors are consistent with the buying and selling of narcotics.”

When Parkinson and other officers executed the search warrant, Ortega led the officers to a shed in his backyard, which contained more than 3,000 grams of cocaine. Ortega then led the officers to a closet in his house where two handguns were located, one on the top shelf and one in a jacket hanging in the closet. A weight scale, several baggies of cocaine, and a safe (which contained approximately $45,000 in cash) were also in the same closet as the handguns. Ortega was indicted for (1) possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (2) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c).

B. Ortega’s Motion to Suppress and Motion to Compel Disclosure

On March 27, 2015, Ortega filed two motions: (1) a motion to suppress and request for a Franks hearing, see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and (2) a motion to compel disclosure of the identity of a confidential informant. In his motion to suppress, Ortega argued, inter alia, that he was entitled to a Franks hearing because Parkinson’s affidavit contained the false statement that a confidential informant had seen cocaine in Ortega’s possession and residence within the past 48 hours. With the motion, Ortega included his own affidavit stating that, besides himself, only his wife and his in-laws had entered his house during those 48 hours. In other words, Ortega argued that the confidential informant’s tip must have been false because the confidential informant could not have seen cocaine inside his house during that time given that the confidential informant did not enter the house (assuming that neither his wife nor in-laws were the confidential informant). In his motion to compel disclosure, Ortega contended that the confidential informant’s identity should be disclosed because the confidential informant’s allegations were the sole support for the search warrant. According to Ortega, “[sjince [the confidential informant] is the sole participant in this case, his testimony and therefore access to him becomes paramount to [Ortega’s] defense.”

The district court referred Ortega’s motions to a magistrate judge. On April 13, 2015, the magistrate judge held an eviden-tiary hearing on the motions.

i Testimony During the Hearing

During the hearing on Ortega’s motions, Parkinson, Ortega, and Ortega’s wife testified. Parkinson testified that he first learned about Ortega at the end of 2012 from a confidential informant (CI-1) who told Parkinson that Ortega was involved in distributing cocaine in San Antonio. After learning this information, Parkinson did not pursue further investigation of Ortega besides some limited research. In April 2013, however, a different source brought up a nickname for Ortega, and Parkinson decided to move forward with the investigation. Specifically, Detective Mario Jacin-to, another detective in Parkinson’s office, had a confidential informant (CI-2) who was familiar with Ortega’s alleged drug trafficking activities. Parkinson identified CI-2 as the confidential informant referenced in his affidavit — i.e., CI-2 had seen cocaine in Ortega’s possession inside Ortega’s house within the past 48 hours and had provided Parkinson with reliable information in the past. Parkinson further explained how CI-2 had seen Ortega in possession of cocaine: CI-2 had driven his friend (Person 4) to Ortega’s house so that Person 4 could purchase cocaine, and when they arrived, Ortega emerged from his house carrying cocaine and engaged in a hand-to-hand sale with Person 4 while Person 4 and CI-2 remained in the car.

Notably, Parkinson testified that he had not actually worked with CI-2 previously. Rather, CI-2 had worked with Jacinto, and Jacinto told Parkinson that CI-2 had proven to be very reliable in the past. Parkinson also testified that he did not actually speak with CI-2. Instead, CI-2 conversed with Jacinto mostly in Spanish, a language that Parkinson does not understand, and Jacinto translated for Parkinson what CI-2 had said.

Ortega denied during his testimony that any hand-to-hand drag transaction, such as the one described by CI-2, had occurred within 48 hours of the execution of the affidavit. Ortega’s wife further supported Ortega’s account by testifying that she did not see any unknown individuals come to their house during the relevant timeframe.

ii. The Magistrate Judge’s Report and Recommendation

The magistrate judge recommended denying the motion to suppress. Relevant to this appeal, the magistrate judge recognized that Parkinson only had observed CI-2 speaking to Jacinto (mostly in Spanish) and that CI-2 had not actually been inside Ortega’s house. However, the magistrate judge noted that CI-2 had concluded that Ortega must have possessed the cocaine inside the house because Ortega emerged from the house and directly delivered the cocaine to Person 4 outside. The magistrate judge thus found that, “although it is not as precise and definite as it could have been,” the language in the affidavit “does appear to fairly fit the facts as they occurred.” The magistrate judge then said that she “makes a credibility finding and, simply put, does not accept defendant’s version of events.” Put another way, the magistrate judge rejected Ortega’s testimony that the drug transaction with Person 4 (as recounted by CI-2) did not occur. The magistrate judge completed her analysis by stating that she “does not conclude the search warrant affidavit contains materially false information or declines to state probable cause.”

The magistrate judge also recommended denying the motion to compel disclosure. The magistrate judge highlighted how none of the four anonymous individuals (CI-1, CI-2, CI-3, or Person 4) had participated in the search of Ortega’s house, and Ortega was indicted on charges relating only to what was found during that search. Moreover, the magistrate judge noted that Ortega’s motion merely asserted his belief or speculation that disclosure may assist his defense. Accordingly, the magistrate judge found that the individuals were mere “tipsters” and disclosure should not be granted.

Ortega filed objections to the magistrate judge’s report and recommendation, but the district court adopted it in full.

C. Plea Agreement

Pursuant to a plea agreement, Ortega pleaded guilty to charges of (1) possession with the intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (2) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Ortega reserved the right to appeal the denials of his motion to suppress and motion to compel disclosure. Ortega was sentenced to 60 months for each of the charges to run consecutively, resulting in a total term of imprisonment of 120 months.

Ortega timely appeals and raises three issues: (1) the factual basis of his guilty plea was insufficient to support the firearm conviction; (2) the district court erred in denying his motion to compel disclosure with respect to the identities of CI-2 and Person 4; and (3) the district court erred in denying his motion to suppress the evidence obtained based on the search warrant. We address each argument in turn.

II. ORTEGA’S CONVICTION UNDER 18 U.S.C. § 924(c)

Ortega challenges the sufficiency of the factual basis of his guilty plea for his firearm conviction under 18 U.S.C. § 924(c). Relying on Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and United States v. Dickey, 102 F.3d 157 (5th Cir. 1996), Ortega argues that the mere proximity of the firearm to the cocaine was insufficient to prove “use” under the statute, and instead, the Government was required to show that he actively employed the firearm in relation to his drug trafficking crime. Thus, according to Ortega, the Government has failed to prove the “use” requirement of § 924(c). Given that Ortega did not raise this argument in the district court, we review for plain error. United States v. Palmer, 456 F.3d 484, 489 (5th Cir. 2006).

Ortega’s argument, however, relies on outdated precedent: Congress effectively overruled Bailey with an amendment to § 924(c) criminalizing the “possession” of a firearm in furtherance of a drug trafficking crime. See Abbott v. United States, 562 U.S. 8, 16-17, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010) (“The 1998 alteration responded primarily to our decision in Bailey.... Congress legislated a different result; in the 1998 revision, colloquially known as the Bailey Fix Act, the Legislature brought possession within the statute’s compass.” (citations and internal quotation marks omitted)). “[P]ossession of a firearm in furtherance of [a] drug-trafficking offense is now a sufficient factual basis for a conviction under § 924(c)(1),” United States v. Ruiz, 533 Fed.Appx. 361, 363 (5th Cir. 2013) (per curiam), and indeed, the superseding indictment charged Ortega with possession of a firearm in furtherance of a drug trafficking crime. Thus, Ortega’s reliance on Bailey is misplaced, and he has failed to show any error regarding his firearm conviction.

III. MOTION TO COMPEL DISCLOSURE

Ortega next contends that the district court erred in denying his motion to compel disclosure with respect to the identities of CI-2 and Person 4. We review a district court’s decision to grant or deny disclosure of a confidential informant’s identity for abuse of discretion. United States v. Ibarra, 493 F.3d 526, 531 (5th Cir. 2007).

The Government has a privilege, usually referred to as the informer’s privilege, “to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). This privilege, however, is not absolute, and there is “no fixed rule” for when a confidential informant’s identity should be disclosed. Id. at 60-62, 77 S.Ct. 623. Instead, the issue “calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Id. at 62, 77 S.Ct. 623. We apply a three factor test to determine whether the identity of a confidential informant should be disclosed: “(1) the level of the informant’s activity; (2) the helpfulness of the disclosure to the asserted defense; and (3) the Government’s interest in nondisclosure.” Ibarra, 493 F.3d at 531.

Here, the district court did not abuse its discretion in denying Ortega’s motion to compel disclosure. Ortega contends that the district court abused its discretion because CI-2 and Person 4 are essential to his defense given that they are the only individuals who can contradict Parkinson’s testimony, and without CI-2’s allegations to support probable cause, there would have been no warrant, no search, and no indictment. But Ortega glosses over a key fact: although CI-2’s information helped law enforcement secure the search warrant, ñeither CI-2 nor Person 4 was a witness to or active participant in the charged offenses (i.e., possession of the drugs and firearms discovered during the search). Thus, the first factor weighs against disclosure. See, e.g., United States v. Edwards, 138 Fed.Appx. 960, 963 (5th Cir. 2005) (per curiam) (“[The defendant] was not charged with the sale of crack cocaine to the Cl. Although this information was used to obtain the search warrant, the Cl did not actively participate in the search and, thus, was not a witness to [the] charged offense.”). Moreover, Ortega has not demonstrated that the identities of CI-2 and Person 4 are essential to his defense beyond unsubstantiated speculation, and therefore, the second factor also weighs against disclosure. See United States v. Orozco, 982 F.2d 152, 155 (5th Cir. 1993) (“[M]ere conjecture or supposition about the possible relevancy of the informant’s testimony is insufficient to warrant disclosure.” (alteration in original) (quoting United States v. Gonzales, 606 F.2d 70, 75 (5th Cir. 1979))). Ortega had the opportunity to question Parkinson about what CI-2 told law enforcement, and as CI-2’s and Person 4’s potential testimony could only relate to probable cause, the underlying truthfulness of CI-2’s allegations was not at issue because “the magistrate [was] concerned, not with whether the informant lied, but with whether the affiant [was] truthful in his recitation of what he was told.” See United States v. Davis, 443 Fed.Appx. 9, 13 (5th Cir. 2011) (per curiam) (quoting McCray v. Illinois, 386 U.S. 300, 307, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967)). Accordingly, Ortega has failed to show that the district court abused its ' discretion in denying his motion to compel disclosure.

IY. MOTION TO SUPPRESS

Finally, we turn to Ortega’s argument that the district court erred in denying his motion to suppress. Ortega argues that his motion to suppress should have been granted because the search warrant was obtained based on an affidavit that contained false statements that were made intentionally or with reckless disregard for the truth, and once those false statements are excised, the affidavit’s remaining content is insufficient to establish probable cause. See Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. “When reviewing a district court’s ruling on a motion to suppress, we review its findings of fact for clear error and its legal conclusions de novo.” United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002); see also United States v. Alvarez, 127 F.3d 372, 373 (5th Cir. 1997) (“Determinations of fact made by a district court in ruling on a motion to suppress are accepted unless the district judge’s findings are clearly erroneous or influenced by an incorrect view of the law. Questions of law are reviewed de novo” (citation omitted)). Following a Franks hearing on a motion to suppress, “[t]he district court’s factual finding that the affi-ant officer did not deliberately or recklessly include the false statement in the affidavit cannot be disturbed unless it is clearly erroneous.” United States v. Looney, 532 F.3d 392, 395 (5th Cir. 2008) (per curiam).

Under the Supreme Court’s decision in Franks, a search warrant must be voided if the defendant shows by a preponderance of the evidence that the affidavit supporting the warrant contained a false statement made intentionally or with reckless disregard for the truth and, after setting aside the false statement, the affidavit’s remaining content is insufficient to establish probable cause. Franks, 438 U.S. at 155-56, 98 S.Ct. 2674; see also Alvarez, 127 F.3d at 373-74 (“If a search warrant contains a false, material statement made intentionally or with reckless disregard for the truth, the reviewing court must excise the offensive language from the affidavit and determine whether the remaining portion establishes probable cause.”). Although the Franks inquiry is often described as two prongs, see, e.g., United States v. Gallegos, 239 Fed.Appx. 890, 895 (5th Cir. 2007), the inquiry effectively consists of three questions, all of which must be met. First, does the affidavit contain a false statement? See, e.g., United States v. Singer, 970 F.2d 1414, 1416-17 (5th Cir. 1992) (affirming denial of motion to suppress because affidavit’s statement was not false). Second, was the false statement made intentionally or with reckless disregard for the truth? See, e.g., Looney, 532 F.3d at 394-95 (affirming denial of motion to suppress because affiant officer did not intentionally or recklessly include the false statement). And third, if the false statement is excised, does the remaining content in the affidavit fail to establish probable cause? See, e.g., United States v. Froman, 355 F.3d 882, 889-91 (5th Cir. 2004) (assuming that purportedly false statement should be excised and affirming denial of motion to suppress because remaining content in affidavit established probable cause). On appeal, Ortega argues that two statements in the affidavit were intentionally or recklessly made falsehoods: (1) CI-2 “did within the last 48 [hours] see a controlled substance, to wit Cocaine, in the possession of ... Ortega ... inside” his house; and (2) Parkinson “receive[d] information from a credible and reliable person who has on previous occasions given [Parkinson] information regarding the trafficking and possession of controlled substances which has proven to be true and correct.”

We first turn to whether the affidavit contained false statements. Ortega has not shown that the first statement at issue — i.e., CI-2 saw cocaine in Ortega’s possession inside Ortega’s house — is false. Ortega argues that CI-2 only purportedly saw cocaine in Ortega’s possession outside the house, and thus, it was false to say that CI-2 saw cocaine in Ortega’s possession inside the house. However, the magistrate judge, whose reasoning was adopted by the district court, concluded that, although the language “was not as precise and definite as it could have been, [it] does appear to fairly fit the facts as they occurred.” According to Parkinson’s testimony at the hearing credited by the magistrate judge, CI-2 saw Ortega exit his house and then sell cocaine to Person 4, who was in the same car as CI-2. Thus, Ortega must have possessed the cocaine that was sold to Person 4 while he was inside his -house given that he walked directly from his house to the car. Although the wording of the affidavit’s statement is imprecise, it reasonably could be read as truthful. See, e.g., Singer, 970 F.2d at 1416-17 (holding that an affidavit’s statement was not false because the wording used “could reasonably and sensibly be read” in a truthful manner); United States v. Hare, 772 F.2d 139, 141 (5th Cir. 1985) (“A statement in a warrant affidavit is not false merely because it summarizes or characterizes the facts in a particular way.”). Thus, this statement is not false under Franks, and no further analysis of this statement is necessary.

Unlike the first statement, however, Ortega has shown that the second statement at issue — ie., Parkinson received the information from CI-2, who had previously provided Parkinson with credible and reliable information — is false. Simply put, the affidavit’s statement that CI-2 had previously provided Parkinson with credible and reliable information is clearly false. Parkinson admitted that he had never worked with CI-2 previously; instead, CI-2 had worked with Jacinto, who in turn told Parkinson that CI-2 had provided reliable information in the past. Moreover, Parkinson testified that he did not actually receive the information from CI-2; instead, CI-2 spoke mostly in Spanish, a language that Parkinson does not understand, to Jacinto, who in turn (possibly later) translated the information for Parkinson. Although, during oral argument, the Government characterized the veracity of this statement as having “greyness” to it given that Parkinson did observe CI-2 speaking to Jacinto, we find this statement to be false. At most, Parkinson observed Jacinto and CI-2 conversing mostly or entirely in a language that he could not understand, but a plain reading of the statement in the affidavit implies that it was Parkinson conversing with CI-2. See Namer, 680 F.2d at 1094 (“The affidavit’s statement is no less a misrepresentation because it manipulates the facts subtly.”). Thus, this statement is false under Franks.

Given that the second statement is false, we must then confront the question of whether Parkinson acted with the necessary intent under Franks when including this false statement in his affidavit — ie., whether Parkinson made the false statement intentionally or with reckless disregard for the truth. “[T]he district court’s determination of the affiant’s state of mind — whether the affiant was lying intentionally, lying recklessly, or merely negligently misstating — is a factual finding that we have reviewed for clear error.” United States v. Neal, 182 Fed.Appx. 366, 370 (5th Cir. 2006); see also, e.g., Alvarez, 127 F.3d at 375 (reversing as clearly erroneous a district court’s determination that the affi-ant’s false statement was only negligent). However, our review of the magistrate judge’s report and recommendation, which was adopted in full by the district court, reveals that the magistrate judge did not make a finding regarding Parkinson’s intent. Instead, it appears that the magistrate judge found that there were no false statements in the affidavit, and thus, the magistrate judge (and therefore the district court) did not need to reach the question of intent.

Even without an intent finding, we may still affirm the denial of the motion to suppress if, assuming that the false statement should be excised from the affidavit, the remaining content of the affidavit still establishes probable cause. “In determining whether probable cause exists without the false statements a court must ‘make a practical, common-sense decision as to whether, given all the circumstances set forth in the affidavit [minus the alleged misstatements], there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” Froman, 355 F.3d at 889 (alteration in original) (quoting United States v. Byrd, 31 F.3d 1329, 1340 (5th Cir. 1994)); see also Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”). Given that the state magistrate judge did not actually consider the excised affidavit, we must proceed “somewhat hypothetically” in determining whether the remaining content in the affidavit establishes probable cause. Namer, 680 F.2d at 1095 n.12.

Here, assuming that Parkinson had the necessary intent such that the false statement should be excised, the remaining content in the affidavit would be insufficient to establish probable cause. Once the false statement is set aside, the excised affidavit would be left with a confidential informant’s tip about seeing cocaine in Ortega’s possession without any further context or detail. Critically, there would no longer be any reference to the confidential informant’s reliability or past history working with law enforcement. See, e.g., United States v. Jackson, 818 F.2d 345, 348-50 (5th Cir. 1987) (“In sum, the affidavit fails to demonstrate adequately the informant’s veracity, reliability or his basis of knowledge so as to support probable cause for issuance of the arrest warrant.”); see also United States v. Mays, 466 F.3d 335, 343-44 (5th Cir. 2006) (listing factors for determining whether an anonymous tip is reliable under the totality of the circumstances). At most, the excised affidavit demonstrates that the police confirmed that Ortega lived at the house and saw an unspecified number of individuals briefly enter the house or engage in unknown hand-to-hand transactions with someone from the house. But the excised affidavit provides no other indication that the tip was credible, let alone any other support for the allegation that cocaine would be found at the house, and the Government cites no caselaw finding probable cause on such limited facts. Accordingly, under these circumstances, the excised affidavit is insufficient to establish probable cause. See, e.g., United States v. Brown, 567 Fed.Appx. 272, 280-84 (5th Cir. 2014) (“[The affiant] attested that his confidential informant was reliable but did not provide any facts upon which the magistrate could rely to make his own determination as to the informant’s reliability.”).

Thus, we must circle back to the factual question of whether Parkinson included the false statement intentionally or with reckless disregard for the truth. If Parkinson had the necessary intent, then the Franks test would be met. Conversely, if Parkinson did not have the necessary intent, then the Franks test would not be met. On the current record, we cannot say as a matter of law whether Parkinson possessed the requisite intent. For example, on the one hand, the statement was clearly false, and a cursory review by Parkinson of the two page affidavit may have revealed the falsity. On the other hand, Parkinson had no obvious motivation to lie because, as Ortega concedes, an affiant officer can rely on information from another officer to establish probable cause in an affidavit. See Neal, 182 Fed.Appx. at 371 (“[W]e agree that the relevant misrepresentation was immaterial to the magistrate judge’s finding of probable cause, a fact which, in addition to being directly relevant to the Fourth Amendment’s probable cause determination (which we here pre-termit), also provides circumstantial evidence of [the affiant’s] good faith.”). But see United States v. Davis, 714 F.2d 896, 899 (9th Cir. 1983) (“This entire problem could have been avoided if [the affiant] had simply rewritten the affidavit to indicate that he was relying on his officers who had personally interviewed the informants.... The fact that probable cause did exist and could have been established by a truthful affidavit does not cure the error.”). In other words, if Parkinson had simply accurately stated that he had received CI-2’s information from Jacinto and that CI-2 had provided Jacinto with reliable information in the past, then probable cause would likely have been found by the state magistrate judge.

Given these arguments, among others, we decline to make the initial factual finding about Parkinson’s intent. Cf. Froman, 355 F.3d at 888 (“The absence of factual findings on whether Agent Binney’s statements that all members received all emails were intentional false statements or reckless misrepresentations precludes us from addressing whether the fruits of the search are protected by the good faith exception.”). Accordingly, we vacate Ortega’s convictions and sentences, and remand for the district court to determine whether Parkinson included the false statement intentionally or with reckless disregard for the truth. See United States v. Guzman, 739 F.3d 241, 248 (5th Cir. 2014); see also United States v. Davis, 663 F.2d 824, 830-31 (9th Cir. 1981). If after making the intent finding, the district court again denies Ortega’s motion to suppress, the district court shall reinstate the convictions and sentences, and Ortega may then appeal. Guzman, 739 F.3d at 248-49.

V. CONCLUSION

For the foregoing reasons, we VACATE the convictions and sentences, and REMAND the case to the district court for further proceedings consistent with this opinion. Any subsequent appeal will be expedited and returned to this panel.

      .Although Ortega's motion references only a single confidential informant, during the subsequent evidentiary hearing, Parkinson testified about four different anonymous individuals who were involved with the investigation to varying degrees. Ortega’s counsel made clear that the motion to compel disclosure applied to the identities of all four anonymous individuals. For consistency, we refer to these individuals as the parties referred to them in the district court and in their briefs (CI-1, CI-2, CI-3, and Person 4).

      . There was also a third confidential informant (CI-3) who identified a photograph of Ortega and provided other information that was not used in the search warrant.

      . The magistrate judge described this conversation as the following: "As made clear at the April 13 hearing, Detective Parkinson indirectly received that information from CI-2; he testified that he observed another ... officer interview CI-2 (apparently by watching through a window in an interview room) with the other officer and CI-2 speaking at times or entirely in Spanish.”

      . Contrary to the Government's waiver argument, we interpret Ortega's argument as a challenge to the sufficiency of the factual basis rather than a challenge to the sufficiency of the evidence.

      . Ortega has not pointed to any evidence that CI-2 did not actually provide the tip about seeing cocaine in Ortega’s possession to Ja-cinto.

      . "Because the first two factors do not establish a case for disclosure, we need not consider the third factor.” Davis, 443 Fed.Appx. at 14.

      . We also reject Ortega’s argument that Person 4’s identity is not entitled to any protection simply because Person 4 did not serve as an informant. Allowing the automatic disclosure of Person 4’s identity under these circumstances likely would allow Ortega to deduce the identity of CI-2, thereby undermining the informer’s privilege. Ortega points to no caselaw supporting his argument.

      .Although the magistrate judge did not explicitly say that the evidentiary hearing was a Franks hearing, the hearing effectively served as a Franks hearing given that each party presented witnesses about the Franks issue. See United States v. Namer, 680 F.2d 1088, 1093 n.10 (5th Cir. 1982).

      . Moreover, this does not appear to be a situation in which Jacinto was merely serving as a real time translator in a discussion between Parkinson and CI-2. Parkinson testified that he did not ask CI-2 any questions. And the magistrate judge surmised that Parkinson watched Jacinto interview CI-2 through a window in an interview room.

      . The magistrate judge made a separate finding that the good-faith exception applied because the affidavit was not "bare bones.” During oral argument, the Government contended that this finding constituted an implicit finding that Parkinson did not make any false statements intentionally or with reckless disregard for the truth. However, although the magistrate judge’s wording could have been clearer, we do not read this separate finding as representing an implicit finding that Parkinson did not have the necessary intent under Franks. Instead, the magistrate judge was merely discussing the good-faith exception in the context of rejecting Ortega’s argument that the affidavit was “bare bones,” an argument that he does not renew on appeal.

      .For example, the magistrate judge stated that she "does not conclude the search warrant affidavit contains materially false information or declines to state probable cause.”

      . Thus, “the normal presumption of validity attaching to a magistrate’s probable cause finding does not apply.” Namer, 680 F.2d at 1095 n.12.

      . We note that the parties did not address precisely what should be excised from the affidavit given that only one of the two statements at issue .is false. Arguably, because the affidavit falsely stated that Parkinson received the information from CI-2, all of the information from CI-2 should be excised. However, we need not and do not decide whether this broader approach should be applied rather than the narrower approach described above {i.e., excising only the statement that Parkinson received information from a confidential informaht who had previously provided Parkinson with credible and reliable information). As discussed infra, we find that, even assuming that the narrower approach is appropriate, the remaining content of the affidavit is insufficient to establish probable cause.


source: Caselaw Access Project

author: GREGG COSTA, Circuit Judge:

license: Public Domain

text:
    Joseph Andrew PRYSTASH, Petitioner-Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee
    No. 16-70014
    United States Court of Appeals, Fifth Circuit.
    FILED April 26, 2017

      David R. Dow, Jeffrey R. Newberry, University of Houston, Law Center, Houston, TX, for Petitioner-Appellant.
    Travis Golden Bragg, Assistant Attorney General, Office of the Attorney General for the State of Texas, Ellen Steward Klein, Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, Austin, TX, for Respondent-Appellee.
    Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

Two decades after being sentenced to death for being the middleman in a niur-der-for-hire, Joseph Andrew Prystash seeks a certificate of appealability to appeal the district court’s denial of his petition for a writ of habeas corpus. He asks us to certify, the following questions: (1) whether there was cause for the procedural default of his Batson claim; (2) whether the State’s withholding of evidence about the involuntariness of a codefendant’s confession established a Brady violation; (3) whether the trial court violated his right to present mitigation evidence at sentencing when it limited expert testimony; (4) whether the introduction of evidence of unadjudicated offenses at sentencing violated the Eighth Amendment; and (5) whether the state court’s application of the invited error doctrine was not an adequate procedural bar against his claim that he was unconstitutionally sentenced to death without an anti-parties jury instruction.

I.

A.

In November 1994, Farah Fratta was shot and killed exiting a vehicle in her garage. Suspicion immediately focused on her husband, Robert Fratta, who was a local police officer. The Frattas had been involved in a contentious divorce, with a child custody hearing set for the end of that month. The night of the murder, Robert Fratta was at church with his children. Phone records and witness testimony showed that, while at church that evening, he made several calls to a mobile phone number belonging to Mary Gipp. Gipp was the girlfriend of petitioner Joseph Prys-tash.

Detective George Roberts later interviewed Gipp. She recounted Prystash saying he had been hired by Robert to Mil Farah and that he had then made a deal with Howard Guidry to shoot Farah. By this time, Guidry was in jail on another charge. Roberts and another detective, Jim Hoffman, then questioned Guidry about the murder. See Guidry v. Dretke, 429 F.3d 154, 155 (5th Cir. 2005). When Guidry requested an attorney, they ceased questioning him, but later returned and lied to him. They said that his attorney had given permission for him to speak with them. Id. In response to this falsehood, Guidry confessed to shooting Farah and described how he had been hired by Robert, through Prystash, to commit the crime. Id. In Guidry’s federal habeas case, we held that the police obtained his confession unlawfully and vacated his conviction. Id. at 157.

Using a warrant acquired with an affidavit by Sergeant Danny Billingsley describing Gipp’s statements and Guidry’s confession, the police arrested Prystash. They then questioned him about the killing. After Prystash disclaimed all knowledge and responsibility, the officers released him from custody.

Billingsley drove Prystash back to his car. On the way, Prystash confessed that he had received a gun and instructions from Robert, solicited Guidry to shoot Fa-rah, and drove Guidry to and from Farah’s home. Billingsley told Prystash to come to the police station the next day so he could give a formal statement, and when he did not appear, the police arrested him again. While in custody, he signed a written statement admitting to participating in Fa-rah’s murder.

B.

Prystash’s trial began in the summer of 1996. During voir dire, the State used its peremptory strikes to remove all five of the black venire members who were questioned. Prystash’s counsel objected that “every black panelist was struck” from the venire. Counsel said, “especially we are calling to the Court’s attention of the strike of juror Ms. Merchant....” That resulted in a Batson inquiry for the Merchant strike during which the court asked the prosecutor to provide a race neutral justification for that strike. The court credited the prosecutor’s explanation. Defense counsel did not ask for that process for the other four struck black jurors. When the court asked defense counsel if there was anything else that needed to be done for the record, the answer was, “I don’t think so.”

During the trial, the prosecution introduced Prystash’s written confession. In addition, Billingsley testified to the incriminating statements made by Prystash while he was driving him home.

Gipp also testified. She described discussions about killing Farah between Prys-tash and Robert Fratta in the months leading up to the murder. She also stated that Robert gave Prystash a gun. Gipp explained that Prystash had told her about how the killing would take place, about hiring Guidry, and what rewards he and Guidry would receive. Gipp further incriminated Prystash by testifying that he and Guidry left home on the night of the killing dressed in black. She said that Prystash returned a few hours later and emptied the cartridges from a gun, telling her that Farah had been killed and describing how the men had carried out the shooting. According to Gipp, Prystash then left home again to meet Fratta.

In addition to Prystash’s statements and Gipp’s testimony, the jury also heard Gui-dry’s confession. While cross-examining Detective Roberts about Prystash’s arrest, Prystash’s trial counsel introduced the warrant for his arrest into evidence in order to show that the detective had not complied with its order to bring him before the issuing judge but instead had held and questioned him irregularly before releasing him with Billingsley. Later, while questioning Billingsley about the circumstances of the arrest, the State asked him to read from the affidavit supporting the warrant, which recounted at length Guidry’s confession implicating Prystash.

The jury convicted Prystash of capital murder. During the sentencing phase that followed, the State introduced evidence of Prystash’s extensive criminal record, including an arrest for attempted murder. It also offered evidence of his bad character. Two of his ex-wives testified that he was remorseless, selfish, angry, manipulative, and lacked compunctions of conscience. In response, the defense offered the testimony of family members who described Prys-tash’s harsh upbringing, including his mother’s alcoholism. The defense also called two volunteer religious leaders who worked with Prystash while he was in Harris County jail. They agreed that Prys-tash was not a danger to others and spoke of his honesty and piety.

Lastly, the defense called psychologist Walter Quijano. Quijano testified that Prystash would not be a continuing threat to guards or inmates if sent to prison. The defense wanted Quijano to testify about how Prystash would be classified and grouped with other inmates while incarcerated, but the trial court prohibited the defense from eliciting that testimony before the jury because it found it was speculative.

The jury sentenced Prystash to death.

c.

Prystash appealed to the Texas Court of Criminal Appeals. Among other things, he argued that the trial court had erred by not submitting to the jury a statutory special issue at sentencing on the responsibility of one found guilty of capital murder as a party to the crime rather than as the shooter. See Prystash v. State, 3 S.W.3d 522, 530-32 (Tex. Crim. App. 1999). At trial Prystash had asked that the instruction not be given, but the Court of Criminal Appeals had previously held that the doctrine of invited error, which generally holds that a party cannot complain of trial errors it induced, could not excuse omission of a similar special issue instruction. Id. at 529-32 (discussing Powell v. State, 897 S.W.2d 307 (Tex. Crim. App. 1994)). In Prystash’s case, the court overruled itself, rejecting the challenge to the omission using the invited error doctrine. Id. at 532.

After losing his direct appeal, Prystash sought postconviction relief in the Texas courts. After that proved unsuccessful, he filed his federal petition. The district court recognized that some of his claims had not been raised in state court. It thus stayed the federal proceedings so that Prystash could remedy this problem with a new state habeas petition. Because this was a successive petition, the Court of Criminal Appeals only allowed one of Prystash’s claims, corresponding to his present Brady claim, to proceed. Ex parte Prystash, 2008 WL 5245551, at *1 (Tex. Crim. App. Dec. 17, 2008). That claim, which alleged that the State suppressed evidence about the unlawfulness of Guidry’s confession, was rejected on the merits as discussed further below.

Prystash then returned to federal court, where he unsuccessfully prosecuted his amended petition. The district court analyzed each of Prystash’s twelve claims in detail. It refused to grant a certificate of appealability on any issues. Prystash now asks us to grant one, but has narrowed that request to the five questions listed at the outset.

II.

Under the Antiterrorism and Effective Death Penalty Act, a certificate of appealability (COA) must issue before a habeas petitioner can appeal the district court’s refusal to grant the writ. 28 U.S.C. § 2253(c)(1)(A). We will issue a COA upon a “substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). Prystash will meet this standard if he shows that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (internal quotations and citation omitted); see also Buck v. Davis, — U.S. -, 137 S.Ct. 759, 773, 197 L.Ed.2d 1 (2017). If the district court found that there was a procedural obstacle to habeas relief, we will likewise grant a COA if “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.” Gonzalez v. Thaler, 565 U.S. 134, 140-41, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)) (internal quotations omitted). “Where the petitioner faces the death penalty, ‘any doubts as to whether a COA should issue must be resolved’ in the petitioner’s favor.” Allen v. Stephens, 805 F.3d 617, 625 (5th Cir. 2015) (quoting Medellin v. Dretke, 371 F.3d 270, 275 (5th Cir. 2004)).

In assessing whether the district court’s rejection of Prystash’s claims is debatable, we consider them under the deference AEDPA mandates federal courts show their state peers. A federal court should not grant habeas relief unless the petitioner has exhausted the remédies available in state court for reviewing the claim. 28 U.S.C. § 2254(b). When the state court has considered and rejected the merits of the claim, a federal court can only grant relief when the state judgment “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 “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A federal court must assume the state court’s determination of the facts is correct unless the petitioner “rebut[s] the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

A.

Prystash argued to the district court that his conviction should be vacated because the prosecution discriminated against black prospective jurors. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Although Prys-tash is not black, he may challenge the exclusion of these jurors. Powers v. Ohio, 499 U.S. 400, 406-11, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). The district court held that this claim was procedurally barred because Prystash had not raised it in state court until his successive state petition, at which time the Texas Court of Criminal Appeals rejected it for not being raised earlier. See Maples v. Thomas, 565 U.S. 266, 280, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012). Prystash acknowledges that in order to obtain relief on this ground he must show cause to excuse the procedural default in state court. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

In the district court, Prystash tried using Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler, — U.S. -, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), to excuse the default. In Martinez, the petitioner’s claim of ineffective assistance of counsel at trial was procedurally barred based on the rejection of that claim in his second state habeas petition for having failed to raise the claim in his first state habeas petition. 566 U.S. at 7-8, 132 S.Ct. 1309. The Supreme Court held that Martinez could excuse this default by showing that his initial state habeas counsel had been ineffective, because Arizona law does not allow a claim of ineffective assistance of counsel to be brought until the postconviction stage (given the need for factual development not often available on direct appeal). 566 U.S. at 17, 132 S.Ct. 1309. In Trevino, the Supreme Court extended Martinez to habeas petitioners in Texas where the law does not bar bringing ineffective assistance claims on direct appeal, but in practice, meaningful review of such claims is confined to collateral review. Trevino, 133 S.Ct. at 1921.

Martinez thus created an exception to the general rule, which provides that the ineffectiveness of a petitioner’s habeas attorney is not cause to excuse a procedural default because there is no constitutional right to representation at that stage. Coleman, 501 U.S. at 752-53, 111 S.Ct. 2546. As the district court here noted, however, the Supreme Court insisted this was a “ ‘narrow exception’ that applies only with respect to ‘cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.’ Prystash v. Stephens, 2016 WL 1069680, at *24 (S.D. Tex. Mar. 17, 2016) (quoting Martinez, 132 S.Ct. at 1315). Martinez/Trevino is so limited because of the nature of ineffective assistance claims, which some states bar from being asserted on direct appeal and other states are reluctant to allow on direct appeal. In contrast, most other claims of trial error (certainly Batson violations among them) can be asserted on direct appeal, and it has long been the case that when such claims are procedurally defaulted because not asserted on direct appeal, the ineffectiveness of appellate counsel may excuse that default. See, e.g., United States v. Guerra, 94 F.3d 989, 993-94 (5th Cir. 1996); United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992). There is no need for Martinez/Trevino to come into play for such claims that can be brought on direct appeal. Because the reasoning underlying Martinez/Trevino does not extend to claims that can generally be brought on direct appeal and Prystash cites no case-law at any level adopting such an extension, the district court’s rejection of Martinez/Trevino as cause for the defaulted Batson claim is not debatable. Cf. Hunton v. Sinclair, 732 F.3d 1124, 1127 (9th Cir. 2013), cert. denied, - U.S. -, 134 S.Ct. 1771, 188 L.Ed.2d 602 (2014) (refusing to apply Martinez and allow ineffective assistance of state habeas counsel to excuse default of a Brady claim).

For the first time in his COA application, Prystash argues that his Batson claim should be excused because he could not have obtained the juror questionnaires that were necessary to prove up his claim during either his direct appeal or state habeas (he ultimately obtained them after asking the federal district court to order their disclosure). But he did not identify this potential ground for cause in the district court. In deciding whether to issue a COA, we are limited to considering only the debatability of the district court’s reasoning and the. issues on which the petitioner sought the COA below. Johnson v. Quarterman, 483 F.3d 278, 288 (5th Cir. 2007). And this argument speculating about what was possible in state court is one in which the factfinding function of the district court would have been particularly helpful. How are we to determine at this stage that a request for the records at trial, on direct appeal, or during state post-conviction proceedings would have been futile? All we know is that when Prystash requested a court order from the federal habeas court, the state court produced the documents that remained (the jury questionnaires; jury cards containing information about the racial makeup of the venire had been destroyed). Due again to the absence of a record that could have been developed if this issue had been raised in district court, we do not know when the jury cards were destroyed and hence whether Prystash could have obtained them at the time of his direct appeal or initial state habeas petition.

The grounds Prystash cites for cause were either (1) not raised in the district court or (2) seek an extension of Martinez/Trevino beyond the realm of ineffective assistance claims for which there is no supporting authority. We will not -issue a COA to review the procedural default ruling.

B.

Prystash argues that he was denied due process by the State’s failure to disclose that Guidry’s confession, which Bill-ingsley recounted to the jury, was involuntary. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). To succeed on a Brady claim, one must show that the prosecution suppressed evidence, that was favorable to the defense, material to either guilt or punishment, and was not discoverable using due diligence. Graves v. Cockrell, 351 F.3d 143, 153-54 (5th Cir. 2003).

This was the one claim that the Texas Court of Criminal Appeals allowed to proceed in Prystash’s second attempt at obtaining habeas relief in state court. But it later adopted the finding of the Texas district court that the information about Guidry’s confession was not material due to other overwhelming evidence of his guilt. The district court gave deference to the Texas court’s application of governing federal law in this respect. See Dickson v. Quarterman, 462 F.3d 470, 477-78 (5th Cir. 2006) (court conducting AEDPA review decides whether state court’s materiality finding was unreasonable application of federal law).

In his request for a COA, Prys-tash contends that the district court applied the wrong standard of materiality to his Brady claim. He asserts that the court incorrectly required that he show it is “more likely than not” that the result of the proceeding would have been different, rather than just a reasonable likelihood that the new evidence could have affected the judgment of the jury. Wearry v. Cain, - U.S. -, 136 S.Ct. 1002, 1006, 194 L.Ed.2d 78 (2016); see also Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). He is correct that “reasonable probability,” not “more likely than not,” is the burden a defendant raising a Brady claim must meet. Kyles, 514 U.S. at 434, 115 S.Ct. 1555.

But the district court did not apply the higher burden. The relevant section of its opinion reads as follows:

The state court’s findings emphasized that information about Guidry’s confession would not have made any difference in Prystash’s trial. Under Brady, “[e]vi-dence is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Graves v. Dretke, 442 F.3d 334, 339 (5th Cir. 2006) (quoting Kyles v. Whitley, 514 U.S. 419, 433 [115 S.Ct. 1555, 131 L.Ed.2d 490] (1995)). “[T]he materiality test is not a test of the sufficiency of the evidence.... Rather, a Brady violation is established by showing ‘that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ” Graves, 442 F.3d at 340 (quoting Kyles, 514 U.S. at 435 [115 S.Ct. 1555]); see also United States v. Bagley, 473 U.S. 667, 682 [105 S.Ct. 3375, 87 L.Ed.2d 481] (1985); Duncan v. Cain, 278 F.3d 537, 539-40 (5th Cir. 2002).

Prystash, 2016 WL 1069680, at *17. The paragraph shows that the district court did not hold Prystash to a higher standard, but instead assessed the state court’s rejection of his Brady claim under the correct “reasonable probability” standard.

In doing so, the district court relied on overwhelming evidence of Prystash’s guilt apart from Guidry’s confession. Most damning was Prystash’s confession. Also powerful was the detailed testimony of his girlfriend, Gipp, relaying statements Prys-tash made and actions he took connecting him to the murder. Prystash’s words, either in the form of his confession or what he told Gipp, did not factor into the analysis when we found the Brady violations were material in Guidry’s case. The jury that convicted Guidry did not hear Prys-tash’s confession to law enforcement, and his words that Gipp recounted were inadmissible hearsay as to Guidry (they are not hearsay as to Prystash because they are statements by the party opponent). See Guidry v. Dretke, 397 F.3d 306, 329-30 (5th Cir. 2005). Given the inculpatory force of this evidence against Prystash, it is not surprising that at his trial the Guidry confession was only briefly mentioned and not later emphasized by prosecutors. The district court’s deference to the state court’s conclusion — that disclosure of the unlawful means by which Guidry’s confession was obtained does not undermine confidence in the verdict — is not debatable.

Also relying on the State’s failure to disclose evidence about the Guidry confession, Prystash argues that his due process rights were violated because the testimony about that confession was false. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). This testimony occurred when Billingsley testified that Gui-dry’s confession was voluntary, when in reality it was unconstitutionally obtained due to officer deception. As with the traditional Brady claim, the district court deferred to the state court’s determination that the testimony concerning Guidry’s confession was “sparse” and that the confession itself was cumulative of the extensive incriminating statements Prystash made both to law enforcement and his girlfriend. In light of that substantial amount of independent incriminating evidence and the deference owed to the state court, jurists of reason would not disagree with the district court’s conclusion.

Perhaps recognizing that the heart of the case against him was his confession and Gipp’s testimony, Prystash changes the focus of. his Brady argument in his COA application. In addition to the arguments he made in state court and federal district court that the unlawfulness of the Guidry confession was exculpatory under Brady and rendered testimony false under Napue and Giglio, he now contends that the improper police conduct could have been used to impeach the value of his own confession. See Giglio, 405 U.S. at 153-54, 92 S.Ct. 763 (discussing impeachment value of evidence not turned over to the defense). He made only passing references to this in his district court briefing so the court did not address it. But even if Prys-tash did sufficiently raise this variation of his Brady claim in the district court and exhaust it in state court, the impeachment value of Guidry’s wrongful confession was not substantial for Prystash’s confession. The officers who took Prystash’s written confession (Detectives Davis and Valerio) were not involved in obtaining Guidry’s confession. The officer who received Prys-tash’s oral confession (Billingsley) was not the one who lied to Guidry. And again, Gipp heavily corroborated Prystash’s confession, and officer misconduct would not impeach her testimony.

Prystash has not met the COA standard for any of his claims relating to the failure to disclose the circumstances surrounding Guidry’s confession.

C.

Prystash next asserts that he was denied his right to present all mitigating evidence bearing on his character and personal history when the State refused to allow Quijano to testify about how Prys-tash would likely be classified and segregated from other inmates in the Texas prison system. See Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Prystash, however, overstates the force of these cases. They “did not federalize the law of evidence.” Barefoot v. Estelle, 697 F.2d 593, 597 (5th Cir. 1983). In this case, the trial court excluded Quijano’s testimony on this point because it ruled it was speculative. See Watts v. Quarterman, 244 Fed.Appx. 572, 576 (5th Cir. 2007) (per curiam). The evidentiary rulings of a state court will only be overridden when there is error “so extreme that it constituted denial of fundamental fairness.” Evans v. Thigpen, 809 F.2d 239, 242 (5th Cir. 1987) (quoting Mattheson v. King, 751 F.2d 1432, 1445 (5th Cir. 1985)). The district court found that Prystash had not made this showing, and he does not argue to the contrary to this court, instead focusing his arguments on the allegation that the State has been allowed to introduce similar evidence in other capital cases and emphasizing a capital defendant’s right to present mitigating evidence without acknowledging the limitations on that right that honor state rules of evidence. Jurists of reason would not disagree that the district court decided this issue correctly.

D.

Prystash also maintains that it was error for the trial court to allow the prosecution to introduce evidence of past unadjudicated offenses, such as his previous arrest for attempted murder, when the jury was deciding whether he should be sentenced to death. He argues that doing so violates the Eighth Amendment because it “introduces unreliability into death penalty sentencing, permits undue prejudice, and lowers procedural safeguards for defendants.” This claim is nonetheless foreclosed by our precedent, so reasonable jurists could not disagree that the district court correctly decided it against Prystash. See Vega v. Johnson, 149 F.3d 354, 359 (5th Cir. 1998); Harris v. Johnson, 81 F.3d 535, 541 (5th Cir. 1996).

E.

The final issue on which Prys-tash seeks a COA relates to the fact that he did not pull the trigger in Farah’s murder. When a defendant is sentenced to death, the punishment must have been “tailored to his personal responsibility and moral guilt.” Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). In order to guard against the possibility that a defendant would receive the death sentence on the basis of the culpability of his accomplices, Texas adopted its anti-parties instruction to be used during sentencing. See Tex. Code Crim. Proc. art. 37.071, § 2(b) (“[T]he court shall submit the following issues to the jury ... in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party[:] whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.”). Texas convicted Prystash of capital murder as a party — someone who “acting with intent to promote or assist the commission of the offense ... solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” Tex. Penal Code § 7.02(a)(2). When a defendant is convicted of capital murder as a party during the guilt/innocence phase of his trial, the purpose of an anti-parties instruction is to limit the jury’s attention during the sentence phase to the personal responsibility and moral guilt of the defendant.

At trial, Prystash successfully asked that the court not include the anti-parties instruction, asserting that it was unconstitutional. Prystash v. State, 8 S.W.3d 522, 529-30 (Tex. Crim. App. 1999). On direct appeal, Prystash reversed course and claimed that not giving the anti-parties instruction was error. Id. at 530. The Court of Criminal Appeals held that Prys-tash had invited the error and denied relief. Id. at 532. The district court found that this ruling was a state procedural bar to federal habeas relief.

Prystash now argues that the invited error doctrine cannot procedurally bar his habeas petition because it was not firmly established that the doctrine applied to the special issue at the time of his appeal. See Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (rule of state procedure that disposes of a constitutional claim must be firmly established and regularly followed). He points out that the Court of Criminal Appeals overruled its prior decision in Powell, which had held that a defendant could appeal an erroneous special instruction even when he had requested it at his capital trial. See Prystash, 3 S.W.3d at 530-32.

But regardless whether the district court’s application of a procedural bar is debatable, the district court also found that the special issue claim fails on the merits. It relied on our prior decisions to the effect that more general special issues, necessary conclusions of the jury at the guilt-innocence phase, and arguments by the parties allow the jury to consider the fact that a defendant was not the trigger-man. See, e.g., Nichols v. Scott, 69 F.3d 1255, 1267-68 (5th Cir. 1995).

In his application for a COA, Prystash does not list the district court’s merits ruling as one of the issues he seeks to appeal. See 28 U.S.C. § 2253(c)(3) (“The certificate of appealability ... shall indicate which specific issue or issues satisfy the [required] showing....”). Nor does his briefing address the merits though his counsel discussed that at argument. This failure to adequately challenge one of the grounds the district court relied on in rejecting this claim renders the request for a COA on the procedural question moot. See Blue v. Thaler, 665 F.3d 647, 662 (5th Cir. 2011); Phelps v. Alameda, 366 F.3d 722, 730 (9th Cir. 2004); Kaminski v. United States, 339 F.3d 84, 85 n.1 (2d Cir. 2003). Were we to grant the COA and review the district court’s finding on the state procedural bar, we would be issuing an advisory opinion as the lack of a COA challenging the district court’s merits ruling would render us powerless to grant Prystash relief.

The application for a certificate of ap-pealability is DENIED.

      . Trial counsel at one point insinuated that the officers never read Prystash his Miranda rights.

      .We note that the Supreme Court is currently considering whether Martinez/Trevino applies to a petitioner citing ineffective assistance of habeas counsel as cause for default of a claim of ineffective assistance of counsel on direct appeal (as opposed to the trial-based claim at issue in Martinez and Trevino). See Davila v. Davis, - U.S. -, 137 S.Ct. 810, 196 L.Ed.2d 597 (2017). But even if the Supreme Court reverses our ruling in Davila, that would not help Prystash with his COA application. Although Prystash did include ineffective assistance of both trial and appellate counsel among the dozen claims raised in the district court (the court rejected them as both without merit and procedurally defaulted), he does not seek a COA related to any freestanding claim of ineffective assistance of counsel.

      . See, e.g., Blackman v. State, 414 S.W.3d 757 (Tex. Crim. App. 2013); Degar v. State, 482 S.W.3d 588 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd).

      . The district court also concluded that even if Martinez/Trevino did apply, Prystash did not make sufficient allegations to show that habe-as counsel was ineffective in failing to raise
        Batson. Prystash now argues that his initial state habeas counsel was ineffective for failing to obtain jury questionnaires. But this claim of ineffectiveness was not presented to the district court.

      . There is a dissent in Hunton, which might show that its holding regarding Brady is debatable. See 732 F.3d at 1127 (Fletcher, J., dissenting). But because Brady claims by their nature typically apply only when evidence is obtained after trial, they are more commonly first raised on collateral attack, given the need for factfinding, than are Batson claims. It is also noteworthy that in the four years since the Hunton dissent, we are aware of no cases extending Martinez/Trevino to cases in which the underlying claim is not one based on Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (addressing right to effective assistance of counsel).

      . Prystash also seems to argue that there is a difference between showing (1) a reasonable probability that the outcome would have been different, and (2) a "reasonable likelihood’’ that that the new evidence “could have 'affected the judgment of the jury.' " Wearry, 136 S.Ct. at 1006 (quoting Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). Wearry invoked only the latter standard. But Kyles uses both formulations, employing the "undermining confidence in the verdict” language to flesh out what it means to show by a "reasonable probability that the outcome would have been different.” 514 U.S. at 422, 433 n.7, 434-35, 115 S.Ct. 1555. And we have long used both formulations interchangeably. E.g., Banks v. Thaler, 583 F.3d 295, 310-11 (5th Cir. 2009). To the extent Prystash argues that Wearry established a new, more lenient standard for Brady defendants, we see no support for that proposition. Wearry was a summary reversal by the Supreme Court decided without oral argument. 136 S.Ct. at 1008 (Alito, J., dissenting). That procedural posture is not one in which we would expect the Supreme Court to change the standard for an important issue like Brady materiality. And Prystash points us to no case reading Wearry as changing the standard. In any event, if the standards are indeed different as Prystash suggests, the district court’s substantive ruling is not debatable considering just the “could have affected the jury” standard he urges.

      . Circuit law, in any event, supports the district court’s merits ruling. "[TJhe law of this circuit [is] that a jury need only be provided one fair vehicle for considering mitigating evidence.” Harris v. Collins, 990 F.2d 185, 189 (5th Cir. 1993). In Prystash’s case, the jury was instructed with Texas’s special issue on future dangerousness. See Nichols, 69 F.3d at 1267 (finding that Texas’s special issue on future dangerousness allowed jury to give a mitigating effect to the petitioner’s nontrig-german status). At oral argument, counsel for Prystash asserted that the instructions given in Nichols were different than those at Prys-tash’s trial. This is true; there were special issues included at Nichols's trial that were absent at Piystash’s, but the issue concerning future dangerousness that the Nichols court called adequate was present in both. Cf. id. at 1261 n.6.


author: STEPHEN A. HIGGINSON, Circuit Judge:

text:
    STATE FARM FIRE & CASUALTY COMPANY, Plaintiff-Appellee v. Cedric FLOWERS; Renee Flowers; Ashley Simmons; Michael Simmons, Defendants-Appellants
    No. 16-60310 Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    FILED April 26, 2017

      Dan W. Webb, Norma Carr Ruff, Webb Sanders & Williams, P.L.L.C., Tupelo, MS, for Plaintiff-Appellee.
    Keith David Obert, Obert Law Group, Madison, MS, for Defendants-Appellants.
    Before JOLLY, SOUTHWICK, and HIGGINSON, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit Judge:

Defendants-Appellants Cedric and Renee Flowers and Renee’s children, Ashley and Michael Simmons, appeal the district court’s grant of Plaintiff-Appellee State Farm Fire and Casualty Insurance Company’s motion for summary judgment. State Farm brought this declaratory judgment action seeking to have a homeowner’s insurance policy issued by State Farm to Cedric Flowers declared void ab initio as a result of material misrepresentations made by Cedric Flowers in his application for the policy. We AFFIRM.

I.

In 2008, Cedric and Renee Flowers purchased a plot of land in Courtland, Mississippi, and asked relatives Ricky and Jennifer Scott to build a house for them on the property for a set price. Because Cedric and Renee Flowers were unable to obtain financing for construction of the house themselves, they quitclaimed the property to the Scotts, who then obtained a construction loan under their own names, using the property as collateral. According to Cedric and Renee Flowers, the Scotts agreed to convey the property back to them upon completion of the construction. Amid disputes with the Scotts over the cost and scope of construction, Renee Flowers’s adult children, Ashley and Michael Simmons, moved into the house before construction was completed. The Scotts eventually defaulted on the construction loan and attempted to sell the property. In 2011,' unable to obtain financing to purchase the uncompleted home, Cedric and Renee Flowers filed suit in state court to enjoin sale of the property.

In April 2012, Cedric Flowers applied for and was issued a homeowner’s insurance policy with State Farm. Shortly thereafter, during the night of July 17, 2012, a fire damaged the insured house and its contents. After discovering Cedric Flowers was not actually the owner of the property, State Farm filed suit seeking a determination that the insurance policy is void ab initio as a result of material misrepresentations made by Cedric Flowers in his application. Following discovery, State Farm filed a motion for summary judgment, which the district court granted. Cedric Flowers, Renee Flowers, Ashley Simmons, and Michael Simmons now appeal.

II.

This court reviews a district court’s grant of summary judgment de novo, applying the same standard as the district court. Carroll v. Metro. Ins. & Annuity Co., 166 F.3d 802, 805 (5th Cir. 1999). Summary judgment is only appropriate “if the movant shows that there is no genuine dispute -as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Mississippi substantive law applies to this diversity case. See Cox v. Wal-Mart Stores E., L.P., 755 F.3d 231, 233 (5th Cir. 2014).

III.

Under Mississippi law, “[i]f the applicant for insurance undertakes to make a positive statement of a fact, if it be material to the risk, such fact must be true.” Prudential Ins. Co. of Am. v. Estate of Russell, 274 So.2d 113, 116 (Miss. 1973) (quoting Fidelity Mut. Life Ins. Co. v. Miazza, 93 Miss. 18, 46 So. 817, 819 (1908)). An insurance contract “induced by misrepresentation or concealment of material facts may be avoided by the party injuriously affected[.]” Id. (quoting Miazza, 46 So. at 819); see also Carroll, 166 F.3d at 805 (“Under Mississippi law, if an applicant for insurance is found to have made a misstatement of material fact in the application, the insurer that issued a policy based on the false application is entitled to void or rescind the policy.”). Importantly, “[i]t is not sufficient that [the applicant] believes [the statement] true, but it must be so in fact, or the policy will be avoided, provided, always, that the misstatement be about a material matter[.]” Russell, 274 So.2d at 116 (quoting Miazza, 46 So. at 819).

“The materiality of a representation is determined by the probable and reasonable effect which truthful answers would have had on the insurer.” Sanford v. Federated Guar. Ins. Co., 522 So.2d 214, 217 (Miss. 1988). Further, materiality is judged at the time of the misrepresentation. Edmiston v. Schellenger, 343 So.2d 465, 467 (Miss. 1977). An insurer seeking to void an insurance contract based on a material misrepresentation must establish the existence of the factual misstatement and its materiality by clear and convincing evidence. See Brewster v. Bubba Oustalet, Inc., 231 So.2d 189 (Miss. 1970) (“It has been the rule in this state for a long time that where fraud is charged it must be shown by evidence which is clear and more convincing that a mere preponderance.”); see also Carroll, 166 F.3d at 805 (applying Mississippi law); Gardner v. Wilkinson, 643 F.2d 1135, 1136, n.3 (5th Cir. 1981) (same).

Here, Appellants do not dispute that, contrary to the information contained in the application, Cedric Flowers did not own the insured property when he applied for the State Farm homeowner’s policy in April 2012. Nor do they dispute that Cedric Flowers’s ownership of the property was material to State Farm’s decision to issue the insurance policy. Instead, Appellants insist that there is no evidence that he willfully misrepresented that he was the property’s owner and argue that there is a genuine question of fact as to whether Cedric Flowers actually told the agent who took his application that he owned the property.

Contrary to the Appellants’ description of the decision below, the district court did not find that Cedric Flowers “knowingly” misrepresented ownership of the property on his application. This is because, as the district court noted, whether the misrepresentation “was intentional, negligent, or the result of mistake or oversight is of no consequence.” State Farm Fire & Cas. Ins. Co. v. Flowers, No. 3:15-CV-99-SA-SAA, 2016 WL 1621997, at *2 (N.D. Miss. Apr. 19, 2016) (quoting Republic Fire & Cas. Ins. Co. v. Azlin, No. 4:10-CV-037-SA, 2012 WL 4482355, at *6-7 (N.D. Miss. Sept. 26, 2012)); see also Russell, 274 So.2d at 116 (quoting Miazza, 46 So. at 819); Carroll, 166 F.3d at 805; F.D.I.C. v. Denson, 908 F.Supp.2d 792, 797 (S.D. Miss. 2012). Thus, we find unavailing Appellants’ argument that there is a genuine issue of fact as to whether Cedric Flowers “reasonably, and in good faith, believed that he was the owner of the property.”

We are similarly unpersuaded by Appellants claim that there is a genuine issue of fact as to whether Cedric Flowers misstated in his application that he was the owner of the property. In support of their argument, Appellants rely on deposition testimony in which Cedric Flowers claimed that he does not remember the questions asked by the State Farm employee and that the meeting was not long enough for her to have asked many questions — suggesting instead that it was the State Farm agent who negligently assumed that Cedric Flowers owned the insured property.

As the district court noted, however, in both his answer to State Farm’s complaint and his response to State Farm’s request for admission, Cedric Flowers admitted to telling the agent who took his insurance application that he was the owner of the property and to stating as much in his application. The district court concluded that these facts were judicially admitted, and therefore rejected Appellants’ argument as an impermissible “attempt to create a dispute around a material fact already admitted.” Flowers, 2016 WL 1621997, at *3 n.4; see also McCreary v. Richardson, 738 F.3d 651, n.5 (5th Cir. 2012), as revised (Oct. 9, 2013) (“This circuit has long noted that factual statements in pleadings constitute binding judicial admissions .... ”). Although Appellants continue to point to Cedric Flowers’s deposition testimony and insist that there is a genuine issue of fact as to whether he stated in his application that he owned the property, they do not attempt to address the district court’s finding that he judicially admitted facts to the contrary. See Davis v. A.G. Edwards and Sons, Inc., 823 F.2d 105, 107-08 (5th Cir. 1987) (“Irrespective of which document contains the more accurate account, the [litigants] are bound by the admissions in their pleadings, and thus no factual issue can be evoked by comparing their pleadings with [an] affidavit.”).

We therefore agree that there is no actual controversy over whether Cedric Flowers made a material misstatement on his insurance application. Accordingly, we AFFIRM the judgment of the district court.

      . Under Mississippi law, a conveyance of quitclaim is “sufficient to pass all the estate or interest the grantor has in the land conveyed.” Miss. Code § 89-1-39.

      . State Farm submitted an affidavit stating that it is against the company’s underwriting guidelines to issue homeowner’s insurance policies to non-owners, and the agent who took Cedric Flowers's application stated in an affidavit that she would have not issued the policy had she known Cedric Flowers was not the owner.