At Petitioner's murder trial, the State's only fact witness testified the victim
was shot once at one location and his body moved and dumped at another. On state
habeas, the State stipulated scientific evidence supported a determination he was shot
where his body was found and that he was shot twice. On habeas, the Court of
Criminal Appeals held the new scientific evidence was immaterial because the jury
heard the same theory of defense at trial and reject ed it. The Court of Criminal
Appeals found that the habeas evidence was immaterial because the jury could have
believed the witness lied about the location of the shooting, how the body was
transported and the number of times that he was shot but believed his testimony that
Petitioner shot and killed the complainant.

The question presented is whether the United States Court of Appeals for the
Fifth Circuit incorrectly denied a certificate of appealability based on this Court's
opinion in Miller-El v. Cockrell, 537 U.S. 322 (2003), even though the materiality
determination by the Court of Criminal Appeals applied a definition of materiality
conflicting with this Court's decisions in Napue v. Illinois, 360 U.S. 264 (1959) and,
Pennsylvania v. Ritchie, 480 U.S. 39 (U.S. 1987), and the Fifth Circuit decisions in,
Barrientes v. Johnson, 221 F.3d 741, (5th Cir. 2000) and Nobles v. Johnson, 127 F.3d
409 (5th Cir. 1997).

Whether the United States Court of Appeals for the Fifth Circuit incorrectly denied a certificate of appealability