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

QUESTION PRESENTED 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 rejected 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, (Sth Cir. 2000) and Nobles v. Johnson, 127 F.3d 409 (Sth Cir. 1997). i