UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________

No. 98-60648 Summary Calendar __________________

JEFF SIMMONS,

Petitioner-Appellant,

versus

JAMES V. ANDERSON, SUPERINTENDENT, MISSISSIPPI STATE PENITENTIARY; MIKE MOORE, Attorney General, State of Mississippi,

Respondent-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Northern District of Mississippi (2:96-CV-161-D-B) _________________________________________________________________

February 2, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Jeff Simmons, granted a certificate of appealability (COA) for

this state prisoner habeas application, contends, pro se, that the

trial court erred when it denied his request for in camera review,

for possible exculpatory material, of the personnel files of two

police officers who were to testify at his trial, thereby,

violating the Sixth and Fourteenth Amendments. We AFFIRM.

I.

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. On 12 June 1991, Cullum, acting as an informant for the

Clarksdale Police Department, entered the Simmons’ store and sought

to purchase illegal drugs. Simmons arranged for Cullum to return

to the store to complete the sale. The conversation was recorded.

Cullum returned to the police station and removed the

recording device. Cullum, observed by Officers Gibson and Thomas,

left to purchase cigarettes and a soft drink. Prior to the

recording device being reattached, and while Cullum was driving

through town, Simmons flagged him down; still under police

observation, they went to the home of Simmons’ mother. Simmons

went in, obtained the drugs, and sold them to Cullum for $40 in

bills, whose serial numbers had been recorded. The Officers

observed the two individuals, but did not see the drugs trade

hands, and the $40 was not recovered. Cullum returned to the

police station and turned in the drugs.

Cullum was later hired by the Clarksdale Police Department.

Prior to trial, defense counsel moved for discovery disclosure,

including the employment files of Cullum and Officer Gibson (one of

the two surveillance officers).

The City moved for a protective order, based on Mississippi

law requiring that such employment matters be kept confidential.

Simmons claimed that there was information in the files that might

concern Cullum’s and Gibson’s veracity. Simmons’ attorney,

however, admitted that he did not know what was in the files. The

trial court granted the protective order, but left open the

- 2 - possibility of in camera inspection, if Simmons could demonstrate

an adequate basis for it.

At the time of trial, neither Cullum nor Gibson was employed

by the Clarksdale Police Department. Cullum had been terminated;

Gibson had resigned.

On 3 September 1992, Simmons was convicted of two counts of

sale of a controlled substance, and was sentenced, inter alia, to

20 years. His direct appeal was denied on 25 April 1995. After

denial of his state application for post-conviction relief, this

federal application was filed in October 1996; it was denied. His

COA-request was denied in October 1998.

In June 1999, our court granted a COA on the following two

issues: whether the trial court violated the Due Process Clause of

the Fourteenth Amendment and the Compulsory Process Clause of the

Sixth Amendment, as set forth in Pennsylvania v. Ritchie,

(1987), when it refused to allow Simmons to subpoena the

personnel records of two state witnesses; and whether he was denied

effective assistance of counsel, because counsel did not raise that

constitutional issue on direct appeal.

II.

The Antiterrorism and Effective Death Penalty Act of 1996,

Stat. 1214 (AEDPA), applies, because

Simmons filed his federal application subsequent to its enactment.

See Green v. Johnson,

(5th Cir. 1997).

Under AEDPA, federal habeas is not available to a state prisoner

- 3 - with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

(d) (emphasis added).

A.

Simmons claimed on direct appeal that the personnel records

should have been discoverable, or, at a minimum, subject to in

camera review. The Mississippi Court of Appeals found no error in

the trial court’s denying access, citing White v. State,

(Miss. 1986), which holds that police officers’ personnel files

should not be sifted through for impeachment purposes. See Simmons

v. State, No. 92-KA-01242-COA, slip op. at 4-5 (Miss. App. 25 Apr.

1995).

On direct appeal, however, Simmons did not posit the denial of

access as being violative of the federal constitution. His

appellate brief cited only state law; he did note, for the first

time in his reply brief, that the State had violated his federal

constitutional rights, but did not provide any argument. Moreover,

his application for state post-conviction relief did not raise

whether, under the United States Constitution, he had a right to

review the records.

- 4 - As noted, the State court opinion for the direct appeal cites

only state law to support its ruling that Simmons did not have a

right to review the files. Accordingly, Simmons’ present

constitutional claim was not adjudicated on the merits in the

state-court proceeding.

Normally, we could not review Simmons’ habeas application,

because he has not exhausted his state remedies. See Whitehead v.

Johnson,

(5th Cir. 1998);

(b)(1)(A). The State, however, has conceded that Simmons has

done so, thereby waiving exhaustion. McGee v. Estelle,

(5th Cir. 1984); 28 U.S.C. §. 2254(b)(1)-(3).

Accordingly, because Simmons’ claim was not adjudicated on the

merits, the above-quoted strict AEDPA standard for relief under

(d) is not applied; instead, this claim is reviewed de

novo. Miller v. Johnson, No. 98-10916,

(5th

Cir. 5 Jan. 2000); Nobles v. Johnson,

(5th Cir.

1997), cert. denied,

(1998).

Simmons relies on Ritchie as requiring these records be

provided for in camera review under both the Compulsory Process

Clause and the Due Process Clause. In Ritchie, however, the

Supreme Court stated it has

never squarely held that the Compulsory Process Clause guarantees the right to discover the identity of witnesses, or to require the government to produce exculpatory evidence. ... Instead, the Court traditionally has evaluated claims such as those raised by Ritchie under the broad protections of the Due Process clause of the Fourteenth Amendment.

Ritchie,

.

- 5 - To establish a due process violation under Brady v. Maryland,

(1963), Simmons must demonstrate that the evidence

was suppressed; the suppressed evidence was favorable to his

defense; and the suppressed evidence was material to guilt or

punishment. Evidence is material only if there is a reasonable

probability that, had the evidence been disclosed, the resulting

proceeding would have been different. E.g., United States v.

Lowder,

(5th Cir. 1998).

1.

At trial, Simmons’ counsel was able to quite effectively

cross-examine Cullum. Cullum admitted that he had used drugs with

Simmons; that, if he helped “bust” Simmons, he was to be hired by

the Clarksdale Police Department; that he continued to use drugs

while employed by that department; and that he was only employed

for a short period of time. Cullum’s testimony was characterized

by the trial judge, outside the presence of the jury, as the “worst

I have seen”.

Officer Gibson was also extensively cross-examined. Moreover,

defense counsel pointed out the inconsistencies in Gibson’s

reports; and that Gibson did not follow normal procedure —

specifically, that he did not search Cullum’s car prior to the

transaction. Therefore, Simmons’ counsel established that it was

possible that Cullum had the drugs prior to the charged transaction

with Simmons.

In Ritchie, the defendant was accused of a series of sexual

crimes against his child. Child and Youth Services (CYS), a state

- 6 - investigatory body, investigated the allegations and prepared a

report.

During pretrial discovery, Ritchie served CYS with a subpoena, seeking access to the records concerning his daughter. Ritchie requested disclosure of the file related to the immediate charges, as well as certain records that he claimed were compiled in 1978, when CYS investigated a separate report by an unidentified source that the Ritchie’s children were being abused.

Ritchie,

. Here, however, Simmons sought the

personnel files of two officers only to search for potential

impeachment material. As noted, defense Counsel admitted that he

did not know what was in the files.

Simmons’ request to search for potential impeachment evidence

was vague, not specific like Ritchie’s. Accordingly, the posture

of Simmons’s claim is distinguishable from that in Ritchie. And,

the weight of the evidence against Simmons, including the tape and

the testimony of Officer Thomas (the other surveillance officer),

whose credibility was not called into question, is far greater than

in Ritchie. (Thomas was indicted, more than three years after

Simmons’ conviction, for conspiracy to possess a controlled

substance. He was found guilty in March 1996.)

The credibility of Cullum and Gibson was challenged

extensively on cross-examination. Simmons has not demonstrated

that the resulting proceeding would have been different had he

received the files. Accordingly, pursuant to our de novo review,

the Brady claim fails.

2.

- 7 - On the other hand, a defendant seeking only an in camera

inspection to determine whether certain files contain Brady

material need only make a plausible showing that the file will

produce material evidence. Lowder,

. Mere

speculation, however, is not sufficient to require a remand for

such review. United States v. Balliviero,

(5th

Cir. 1983).

At the evidentiary hearing, Simmons’ counsel stated:

True enough I don’t know what is in those files. ... There may not be anything that’s in there that would go to their truthfulness or veracity or show bias on the part of these officers. But there may be. And if there is, I think I’m entitled to know about it.

Simmons was not searching for material evidence; instead, he was

seeking general impeachment evidence.

Simmons does not contend that the information in the files

concerned his guilt or innocence; he wants only to know why the

Officers were terminated. He is still seeking impeachment

evidence, contending that, because the Officers might have been

terminated for reasons affecting their truthfulness and veracity,

it is material.

Even assuming the files contain impeachment evidence, and as

discussed supra, there is not a reasonable probability that, had

the evidence been disclosed, the result of the trial would have

been different. Accordingly, Simmons has not demonstrated that it

is plausible that the officers’ files contain material information.

Therefore, remand for an in camera inspection is not required.

- 8 - B.

Simmons bases his ineffective assistance contention on his

attorney, on direct appeal, not raising Ritchie or otherwise

claiming violation of a constitutional right concerning the denial

of access. For such ineffective assistance, it must be established

that counsel’s performance was deficient in that it fell below an

objective standard of reasonable professional service, and that the

defendant was prejudiced by the deficient performance. See

Strickland v. Washington,

(1984).

On appeal, counsel is not required, obviously, to present a

meritless point. As reflected in part II. A., Simmons has not

shown the requisite prejudice.

III.

For the foregoing reasons, the denial of habeas relief is

AFFIRMED.

- 9 -