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*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 91-1195
Summary Calendar
__________________
CHARLES E. BAKER,
Petitioner-Appellant,
versus
JAMES A. COLLINS, Director, Texas
Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
______________________________________________
Appeal from the United States District Court for the
Northern District of Texas
(CA-5-89-0135)
______________________________________________
(February 5, 1993)
Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.*
GARWOOD, Circuit Judge:
Petitioner-appellant Charles Earl Baker (Baker) appeals the
district court's denial of his petition for habeas relief under 28
U.S.C. § 2254. Baker contends that his 1983 Texas conviction for
aggravated kidnapping was constitutionally invalid because: (1)

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the state failed to turn over exculpatory evidence in violation of
Brady v. Maryland, 83 S.Ct. 1194 (1963); and (2) he was denied
effective assistance of counsel in that his attorney (a) failed to
move to suppress a lineup resulting from an unlawful arrest; (b)
offered in evidence a mug shot with the notation "Police Department
Lubbock, Texas"; (c) failed to object to the police officer's
identification of the person on the blurry bank videotape and
failed to procure an expert witness to compare a videotape of the
suspect to the defendant; (d) failed to procure the testimony of
the victim's treating doctor who found no medical evidence of the
victim's rape allegation; (e) failed to procure additional alibi
witnesses for the defendant; and (f) failed to interview the female
victim and the police officer prior to trial. We affirm.
Facts and Proceedings Below
Charles E. Baker was convicted in Texas state court of
aggravated kidnapping. Holding a gun, Baker accosted a man and a
woman in the parking lot of a bar on April 17, 1980. He demanded
money and ordered the man to get in the driver's seat of the man's
car while Baker and the female victim got into the back seat.
Baker allegedly forced the woman to disrobe, raped her twice, and
committed an act of oral sex on her. Baker then instructed the man
to stop the car at an automatic teller machine where all three of
them got out of the car. When a policeman drove into the bank
machine parking lot, Baker, the man, and the woman all returned to
the car. Though they failed to get any money, a videotape of them
was taken at the bank machine. After leaving the parking lot, the
man jumped out of the car and fled. Baker got in the front seat

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and began driving. Several blocks later, the woman also jumped out
of the car and fled.
In police interviews shortly after the crime, the victims'
only description of the assailant was that he was a black male
wearing surgical gloves. The woman viewed two photographic
lineups. She identified no one as her assailant in the first
lineup. A few days later, after police officer Britt identified
the man in the bank video as Baker from a blurry picture, the woman
identified Baker in a second photographic lineup containing six
pictures. The victim said she was very sure, but not positive,
that Baker was the assailant. A grand jury indicted Baker on May
9, 1980.
On May 25, 1982, two years later, Baker, who had been living
in California for ten years, called the police to report that his
car was in the process of being robbed. On arrival, the police
arrested Baker instead under the mistaken belief that he was a drug
dealer named Steel. The California police detained Baker after a
computer check revealed that he was wanted in Lubbock, Texas.
Through extradition, Baker was returned to Texas. In Lubbock,
Baker was placed in a live lineup where the female victim
identified him.
Baker appealed his conviction, brought four state habeas
petitions, a state court petition for grievances, and filed this
habeas petition in federal district court. The federal district
court appointed an attorney to represent Baker and held an
evidentiary hearing before dismissing the habeas petition on the
merits. Baker has appealed to this Court, pro se, after the

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district court issued a certificate of probable cause for appeal
and declined to appoint counsel for this appeal.
Discussion
I. Brady Violation
Baker contends that the state's failure to turn over
exculpatory evidence violated Brady v. Maryland, 83 S.Ct. 1194
(1963). Under Brady, the prosecution's suppression of evidence
"favorable to an accused upon request violates due process where
the evidence is material either to guilt or punishment,
irrespective of the good faith or bad faith of the prosecution."
83 S.Ct. at 1196-97 (suppression, favorable evidence, materiality).
Evidence is material when a reasonable probability exists that its
disclosure would create a serious possibility of a different result
at trial. United States v. Bagley, 105 S.Ct. 3375 (1985). Under
Brady, the prosecution is responsible for disclosing information
contained in police records including impeachment evidence. See
id.; Williams v. Whitley, 940 F.2d 132, 133 (5th Cir. 1991).
The state failed to turn over a statement given by the victim
to the police the day after the crime, April 18, 1980. This
statement, though in the police records, was not in the
prosecution's file, nor given to the defendant. In this statement,
the victim described her attacker only as a "black male." Yet,
three years after the crime, the victim described her assailant's
size and clothes giving the same details as one of the police
officers involved. Baker argues that this statement could have
been used to impeach the victim's subsequent identification of
himSQthe sole issue at trial.

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Though the prosecution erred in failing to disclose this
statement, we find that no Brady violation occurred because no
reasonable probability of acquittal existed merely from the
disclosure of the statement. Specifically, Officer Combs
testified, without contradiction, that the victim's only
description was that her assailant was "a black male." Thus, the
statement was merely cumulative of Officer Combs' undisputed
testimony. Both Officer Combs and the victim were cross-examined
on the assailant's identification. Baker's trial attorney
testified at the federal evidentiary hearing that the statement
would not have aided him in cross-examination of the victim or
otherwise altered the trial "because the information was already
there" and the statement "basically tracked the police offense
report." Finally, the victim was able to generate enough details
for a composite. These facts and other evidence of identification
outweigh any marginal further impeachment value of the statement.
II. Ineffective Assistance of Counsel
Baker alleged that numerous instances of asserted ineffective
assistance of counsel at trial entitle him to a new trial with
adequate representation. Strickland v. Washington, 104 S.Ct. 2052
(1984), set out a two-pronged test for determining the adequacy of
counsel. First, did counsel's performance fall below an objective
standard of reasonableness? Second, did the deficient performance
result in prejudice?
A. Pre-trial lineup
Baker contends that counsel should have moved to suppress the
identification from the live lineup because he was unlawfully

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1 Baker recognized in his reply brief that Stone v. Powell, 96
S.Ct. 3037 (1976), bars a challenge to the legality of the arrest
in a habeas case. Baker also presents facts suggesting that the
lineup was unduly suggestive. He did not raise this issue in the
district court and we refuse to consider it now.
6
arrested without probable causeSQthat his arrest warrant was
invalid since the affiant lacked personal knowledge.1 Under
Kimelman v. Morrison, 106 S.Ct. 2574 (1986), the court may consider
in a habeas proceeding whether counsel was ineffective in failing
to move to suppress evidence obtained in violation of the Fourth
Amendment, even though the Fourth Amendment claim itself may not be
raised on habeas. See Stone v. Powell, 96 S.Ct. 3037 (1976). A
valid indictment supersedes an arrest warrant as the basis for
detention and establishes probable cause for an arrest. Rodriguez
v. Ritchey, 556 F.2d 1185, 1191 (5th Cir. 1977), cert. denied, 98
S.Ct. 894 (1978); Wicker v. State, 667 S.W.2d 137, 139-40 & n.1
(Tex. Crim. App. 1984) (en banc). The fact that one is not
prosecuted for the charge for which one is extradited does not
suggest any deficiency in arrest, indictment, or prosecution.
Lascelles v. Georgia, 13 S.Ct. 687 (1893).
In April of 1980 an arrest warrant was issued for Baker.
Then, on May 9, 1980, a Texas grand jury indicted Baker on charges
of aggravated rape. A separate indictment on kidnapping charges
was issued the same day. In 1982, Baker was mistakenly arrested on
the theory that he was a California drug dealer named Steel. While
arrested, a police check on his true identity revealed the
outstanding rape indictment and led to his detention and

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extradition. Upon his return to Texas, he was placed in a lineup
in which the victim identified him.
Baker's mistaken initial arrest in California as a drug
dealer named Steel was valid if the police had probable cause to
arrest Steel. See United States v. McEachern, 675 F.2d 618, 621
(4th Cir. 1982), citing Hill v. California, 91 S.Ct. 1106, 1110
(1971) ("If the police have a valid arrest warrant for one person
and they reasonably and in good faith arrest another, . . . the
arrest of the `wrong person' is proper" and fruits of the arrest
are admissible.). Regardless of whether Baker's arrest was proper,
the challenged alleged fruits of Baker's arrest were obtained from
a lineup conducted months later. This lineup occurred after the
California police discovered the valid indictment against Baker and
after Baker's extradition to Texas. Even if the initial arrest
were illegal, any nexus to the lineup is simply too attenuated.
See, e.g., Rawlings v. Kentucky, 100 S.Ct. 2556, 2562-64 (1980).
Baker's removal to Texas was based on a valid indictment and
Baker has not shown that the lineup resulted from an illegal
arrest, that the arrest lacked probable cause, or that his counsel
was deficient for failing to move to suppress the lineup as the
fruit of an unlawful arrest. This claim is without merit.
B. The mug shot
Baker contends that his attorney was deficient because the
attorney offered into evidence a "mug shot" of the defendant with
the notation "Police Department Lubbock, Texas." During the habeas
hearing, Baker's trial attorney stated that he did not think the

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notation on the photo was objectionable hearsay. During
deliberation, the jury asked to see the mug shot.
In Richardson v. State, 536 S.W.2d 221, 223 (Tex. Crim. App.
1976), the Texas Court of Criminal Appeals reversed the defendant's
conviction based on a similar mug shot because the picture implied
the commission of an extraneous offense. But see Harlan v. State,
416 S.W.2d 422, 423 (Tex. Crim. App. 1967) (mug shot not reversible
error). Baker's picture did not refer to an extraneous offense;
nor did either defense counsel or the prosecution, and neither
referred to the police markings on the picture. Though defense
counsel erred by not cropping the picture to remove the police
department notation before offering the picture into evidence, the
error was harmless in light of all the other evidence.
C. Lay identification based on videotape
Baker contends that his attorney erred by failing to object to
the police officer's identification of the person in the blurry
bank videotape and by failing to procure an expert witness to
enhance the bank video and compare the videotape of the suspect to
Baker to rebut the officer's testimony.
The officer gave his opinion that the person in the bank
videotape was Baker, a man he had known for ten years. Baker
contends that this testimony was inadmissible inasmuch as lay
persons are incapable of making identifications based on
videotapes. However, no case law requires identification witnesses
to have expert training. See generally United States v. Alexander,
816 F.2d 164, 169 (5th Cir. 1987) (juries competent to evaluate eye
witness testimony on identification). The jury saw the videotape

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and was able to decide whether the person in the videotape looked
like the defendant. During deliberations, the jury asked to have
the videotape replayed. Most importantly, on cross-examination,
the attorney tried to discredit the officer's identification of
Baker. Thus, Baker's counsel was not unreasonable in failing to
object to admissible testimony.
Baker wanted an expert to testify that the police officer
could not make a valid identification of the defendant based on the
videotape and to testify that the physical characteristics of the
person in the videotape are different from Baker's. The district
court denied Baker's motion requesting permission to send the
videotape to an expert and the money to pay for it.
In Alexander, 816 F.2d at 169, a direct criminal appeal, this
Court held that expert identification witnesses are unnecessary
merely to challenge the identification testimony of eyewitnesses.
However, the Alexander court held that expert comparisons of the
physical characteristics of the accused and pictures of the suspect
were admissible under the "particular circumstances" of that case.
Id. at 168-69. The Alexander court granted a new trial because of
the error in excluding such expert evidence. However, we did "not
hold that such evidence will always be admissible in every case."
Id.
At the habeas hearing, Baker's trial counsel testified that
his strategy was not to enhance the videotape because blurry photos
might better discredit the testimony, but counsel admitted that he
had not considered procuring an identification expert. This

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strategy, while perhaps less effective than calling an expert, is
not unreasonable.
While Baker's attorney could have objected to the officer's
lay opinion testimony and could have procured an expert witness to
compare the identification, Baker's attorney was not unreasonable
in failing to do either.
D. No medical evidence of rape
Baker claims that his attorney was deficient in failing to
procure the testimony of the victim's treating doctor who found no
medical evidence supporting the victim's rape allegation.
Immediately after the incident, the victim had a medical
examination. The examination found no hairs in the victim's pubic
combings, no seminal matter in the vaginal or perineal washings,
and no semen on her clothes. The report itself contained
contradictory statements by the victim. The victim answered "no"
to the question: did assailant force patient to commit oral sex?
But the report said, "he did oral sex her."
While these records and the treating physician's testimony
would have tended to impeach the victim's credibility since she
testified that she got a good look at Baker during the alleged
rape, Baker's attorney brought out all of this information, except
the oral sex discrepancy, in his cross-examination of a police
officer. Though the lawyer may have acted unreasonably, any error
was harmless since essentially the same evidence was produced on
cross-examination.

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E. Alibi witnesses
Baker contends that counsel erred in failing to subpoena
additional alibi witnesses for the defendant. Baker's alibi is
that he was in California with a broken leg at the time of the
crime. Baker claims that at least seven witnesses were available
and willing to testify. Claims of ineffective assistance of
counsel due to uncalled witnesses are disfavored in federal habeas
review. Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984). The
availability of uncalled alibi witnesses, when other alibi
witnesses testified at trial, generally does not justify habeas
relief as the testimony is cumulative. United States v. Simone,
452 F.2d 554, 555 (5th Cir. 1971), cert denied, 92 S.Ct. 2067
(1972) (ineffective assistance of counsel claim of failure to call
additional alibi witnesses denied where five alibi witnesses
testified at trial); Morris v. Wyrick, 516 F.2d 1387, 1391 (8th
Cir. 1975), cert denied, 96 S.Ct. 268 (1975) (more than two alibi
witnesses would be cumulative). Baker claims that his treating
physician, Dr. Ross, would testify to the cast on his leg in 1980.
Before trial, Dr. Ross's name was not on Baker's witness list and
Baker's counsel testified that Baker could not remember the
doctor's name. Baker offered no evidence that Dr. Ross would have
testified that he was in a cast in April of 1980 or that Dr. Ross
treated him in 1980. The only evidence that Dr. Ross ever treated
him was a statement from Dr. Ross's office that he was treated in
1983. Baker also failed to offer evidence of the testimony of

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several of the other witnesses other than his own conclusory
opinion that they would verify his alibi.
Baker, however, presented two witnesses at the habeas hearing,
Marilyn Beaver and Archie Nell Shed, who testified that Baker was
in California with a broken leg in 1980. This is consistent with
the testimony of two alibi witnesses at trial that Baker was in
California in 1980 with a broken leg. None of the witnesses,
however, testified that Baker was in California on the day the
offense occurred. Baker listed other witnesses as available to
testify at trial, but failed to present evidence at the habeas
hearing of what their testimony would be.
Because this testimony would have been cumulative and the
attorney made some efforts to locate these witnesses, we find that
the attorney acted reasonably and that Baker's constitutional
rights were not violated.
F. Pre-trial investigation
Baker contends that his attorney was deficient in failing to
interview police officer Britt prior to trial, thus not having
advance warning of Officer Britt's testimony that he (Britt) saw
Baker and his sister driving together in what he thought was her
car, which he believed was a brown Cadillac, the day he (Britt) was
asked to identify the bank photograph, and that Baker was wearing
similar clothes in the car as in the photograph. However, this
testimony was given by Britt under cross-examination by Baker's
counsel at a pretrial suppression hearing, not at trial. Hence,
counsel learned of it prior to trial regardless of his failure to
interview Britt prior to trial; nor was Britt's testimony in this

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2 We deny Baker's motion, filed in this Court, "to abate and
remand for ex[h]austion of state court remedies, newly discovered
evidence, or in the alternative new trial."
13
respect put before the jury. Baker has not shown sufficient
prejudice, under Strickland, from his attorney's failure to
interview the officer prior to trial.
Baker also argued that his attorney failed to subpoena his
sister's car papers showing that she did not purchase her brown
Cadillac until after the incident occurred. This issue was not
exhausted in state court, as the state court granted Baker's motion
for dismissal on this issue, and Baker cannot argue it now.
Conclusion
Baker has raised other claims on appeal that were not raised
below and has also complained of prison retaliation because of this
appeal. We will not consider the arguments that were not raised
below. And, this appeal is not the appropriate forum to address
Baker's complaints of prison retaliation.2
In sum, Baker has demonstrated no reversible error in the
district court's denial of his allegations of a Brady violation and
of ineffective assistance of counsel, and we affirm the judgment of
the district court dismissing Baker's habeas petition.
AFFIRMED

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