1 United States Court of Appeals,

Fifth Circuit.

No. 96-50809.

Mitchell LACKEY, Petitioner-Appellant,

v.

Gary L. JOHNSON, Director, Texas Department of Criminal Justice,

Institutional Division, Respondent-Appellee.

June 26, 1997.

App eal from the United States District Court for the Western

District of Texas.

Before WISDOM, BENAVIDES and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Mitchell Lackey was convicted on various charges stemming from

the molestation of his four-year-old granddaughter. Lackey's

conviction was affirmed by the Fourth Court of Appeals of Texas;

Lackey did not appeal to the Texas Court of Criminal Appeals.

Lackey did file an application for state habeas relief but that

petition was denied. Lackey then filed a "Motion for Injunctive

Relief" in federal district cour t, which the district judge

interpreted as a request for federal habeas relief. Lackey claimed

that he was denied effective assistance of counsel. The district

court, noting that some of Lackey's claims had not been exhausted,

rejected all of Lackey's ineffective-assistance claims. However,

the district court did grant Lackey a Certificate of Appealability

(COA) on the question of whether Lackey's attorney provided

ineffective assistance of counsel when he elicited evidence about

Lackey's prior acts of sexual misconduct with his daughter (the2

mother of the victim in this case). Finding no error, we affirm

the district court's denial of habeas relief.

BACKGROUND

Jennifer Hoy (Jennifer) was four years old when she was

molested by her grandfath er, defendant Mitchell Lackey. A jury

ultimately convicted Lackey for aggravated sexual assault,

indecency with a child (contact), and indecency with a child

(exposure). Lackey was sentenced to seven-and-one-half years'

imprisonment for aggravated sexual assault and five years'

imprisonment for each of the indecency convictions. Because this

appeal implicates defense counsel's conduct with regard to

eliciting damaging testimony against Lackey, we present only those

facts relevant to that claim.

Tamari ne Gail Lackey (Tammy)—defendant Lackey's

ex-wife—testified for the defense that Jennifer a nd Lackey got

along well. She testified that Lackey and Jennifer's parents had

a dispute on October 31, 1991, when Tammy did not wish to take both

of the Hoys' children, and that they had a later dispute involving

an automobile. During the October 31 dispute, Lackey made a

comment to John Hoy (Hoy) suggesting that Hoy did not trust Lackey

with his children.

Hoy testified as a defense witness. Defense counsel asked Hoy

whether he had a reason to distrust Lackey. Hoy stated, "[t]he

reason is that about three years ago my wife had told me that he

had sexually molested her when she was 13." Hoy testified on

cross-examination that Rene Hoy (Rene) had been "sexually molested3

and raped when she was 13 by her own father."

Lackey testified and deni ed having abused Jennifer. Lackey

was unsure why he asked whether Hoy trusted him with the children.

On cross-examination, Lackey testifie d in detail about molesting

Rene one time when she was 12 or 13 years old. Defense counsel did

not object. According to Lackey, he had a substance abuse problem

at the time. Lackey denied that he molested Rene more than once.

Rene was recalled by the State and testified in detai l about two

episodes during which Lackey sexually assaulted her.

PROCEDURAL HISTORY

Lackey's conviction was affirmed by th e Fourth Court of

Appeals of Texas. Thereafter, Lackey filed a "Motion for

Injunctive Relief" in federal district court, in which he contended

that he received ineffective assistance of counsel and that there

was insufficient evidence to support his conviction. He requested

a new trial. Lackey attached his state-court appellate brief and

the Court of Appeals's opinion to his motion. The district court

construed Lackey's motion as a petition for habeas corpus relief.

The State moved for dismissal of Lackey's petition for failing

to exhaust state-law remedies because Lackey did not seek review by

the Texas Court of Criminal Appeals. Lackey had filed an

application for state habeas relief; that application was denied.

The district court found that Lackey had exhausted some claims and

failed to exhaust others; the district court rejected all of

Lackey's claims on the merits. However, the district court granted

Lackey a COA on the issue of whether counsel w as ineffective by4

eliciting testimony about Lackey's prior acts of sexual misconduct.

DISCUSSION

I. T HE S COPE OF O UR R EVIEW

The threshold question we face is whether the s cope of our

appellate review is limited to the issue specified in the COA or

whether the grant of a COA permits a habeas petitioner to raise

issues other than those set forth in the COA. We conclu de that

under the plain terms of the Antiterrorism and Effective Death

Penalty Act (AEDPA), Pub.L. 104-132, 110 Stat. 1214 (1996), our

review of Lackey's habeas petition is limited to the issue

specified in the COA granted by the district court.

Under the AEDPA, a district court has the authority to issue

a COA. See Else v. Johnson, 104 F.3d 82, 83 (5th Cir.1997) (per

curiam) (on reconsideration). The district court in this case

limited Lackey's COA to the issue of whether defense counsel

provided Lackey ineffecti ve assistance of counsel by eliciting

testimony about Lackey's pri or acts of molestation. On appeal,

Lackey raises eight other claims, some of which were rejected by

the district court, others which are raised for the first time on

appeal. We have yet to address the question of whether a

three-judge panel like this one must reach the eight issues that

were not specified in the COA.

We need not look very far, however, for the answer. A plain

reading of the AEDPA compels the conclusion that COAs are granted

on an issue-by-issue basi s, thereby limiting appellate review to

those issues alone. Section 2253(c)(3) states: "The certificate1 We do not suggest, of course, that if a federal habeas

petitioner presents one issue to a district or circuit judge and a

COA is granted without issue specification, that we would conclude

failure to specify the issue for review amounts to noncompliance

with § 2253(c)(3). S ee Muniz,

--- F.3d at

---- n. 1 (relying on

Else, 104 F.3d at 83).

5 of appealability under paragraph (1) shall indicate which specific

issue or issues satisfy the showing requ ired by paragraph (2)."

(Emphasis added.) A COA issues only if the petitioner makes a

"substantial showing of the denial of a constitutional right." §

2253(c)(2 ). Accordingly, only those factual and/or legal issues

which amount to a "substantial showing of the denial of a

constitutional right" can be reviewed on appeal. 1 S ee, e.g., Hill

v. Johnson,

--- F.3d ----, ---- (5th Cir.1997); M uniz v. Johnson,

--- F.3d ----, ---- (5th Cir.1997); L ucas v. J ohnson, 101 F.3d

1045, 1046 (5th Cir.1996).

This conclusion is reinforced by looking to the language of

pre-A EDPA § 2253, which did not state that CPCs must specify the

issues for appellate review. M un iz, --- F.3d at ----. When

Congress alters the wording of a statute, we must presume Congress

intended a change in the law. S ee Brewster v. Gage, 280 U.S. 327,

337, 50 S.Ct. 115, 118, 74 L.Ed. 457 (1930). Moreover, if we were

to conclud e that § 2253(c)(3) of the AEDPA requires issue

specification, yet hold that granting a COA brings up all issues

raised before the district or circuit judge who issued the COA, we

would render meaningless the specification language in §

2253(c)(3). Such a conclusion does not comport with the

fundamental principle of statutory construction that every word in6

a statute should be construed to have some operative effect. See

United States v. Nordic Village, Inc., 503 U.S. 30, 36, 112 S.Ct.

1011, 1015, 117 L.Ed.2d 181 (1992); U nited States v. RodriguezRios, 14 F.3d 1040, 1044 (5th Cir.1994) (en banc).

In this appeal, Lackey (in addition to the issue specified in

the COA) raises issues that were either rejected by the district

court or raised f or the first time in this court. We decline to

address those issues rejected by the district court b ecause they

are outside the ambit of the COA. A contrary conclusion would risk

inconsistent adjudication, a concern we recently suggested factors

into a § 2253(c)(3) analysis. S ee Muniz,

--- F.3d at

----

(declining to evaluate the issues that may be the subject of a COA

when s uch a determination may be inconsistent with the district

court's assessment of the viability of petitioner's federal habeas

claims). And we decline to address those claims that Lackey has

raised for the first time on appeal because those issues are deemed

waived. S ee Carter v. Johnson, 110 F.3d 1098, 1112 (5th Cir.1997).

In short, the sole ques tion presented in this appeal is

whether Lackey was denied effective assistance of counsel when his

attorney elicited information about Lackey's prior acts of sexual

misconduct. We turn to that issue now.

II. L ACKEY R ECEIVED E FFECTIVE A SSISTANCE OF C OUNSEL

It is by now well settled that to prevail on an

ineffective-assistance-of-counsel claim, Lackey must show "that

counsel's performance was deficie nt" and "that the deficient

performance prejudiced the defense." S trickland v. Washington, 4667

U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To

prove deficient performance, Lackey has the burden of demonstrating

that co unsel's actions "fell below an objective standard of

rea sonableness." I d. at 688, 104 S.Ct. at 2064. And to prove

prejudice, Lackey must show that "there is a reasonable probability

that, but for counsel's unprofessional errors , the result of the

proceeding would have been different," id. at 694, 104 S.Ct. at

2068, and that "counsel's defic ient performance render[ed] the

result of the trial unreliable or the proceeding fundamentally

unfair." Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838,

844, 122 L.Ed.2d 180 (1993).

At the outset, we note that we entertain serious doubts about

the veracity of Lackey's claim (raised in this appeal for the first

time) that he actually informed his attorney that he had molested

Rene. The Texas Court of Appeals found no evidenc e in the record

suggesting that Lackey told counsel that he sexually abused Rene,

and that counsel could not have been ineffective for failing to

discover information Lackey could have disclosed but did not. In

addition, the district court noted that Lackey did not allege that

counsel had reason to know Lackey abused Rene, thereby compelling

the conclusion that counsel could not have been in effective for

accidentally eliciting the information at trial.

In general, counsel is not ineffective for failing to

discover evidence about which the d efendant knows but withholds

from counsel. S ee Randle v. Scott, 43 F.3d 221, 225 (5th Cir.),

cert. denied,

--- U.S. ----, 115 S.Ct. 2259, 132 L.Ed.2d 2658

(1995). Lackey alleges for the first time in this appeal that he

informed counsel before trial that he ha d abused Rene sexually.

This court reviews contentions not raised in the district court for

plain error. D ouglass v. United Servs. Auto. Ass'n, 79 F.3d 1415,

1428 (5th Cir.1996) (en banc). Only in the rarest of circumstances

do errors involvi ng issues of fact amount to plain error. S ee

Robertson v. Plano City of Texas, 70 F.3d 21, 23 (5th Cir.1995).

Whether Lackey informed his attorney before trial that he had

abused Rene sexually is a factual issue. Lackey has not

demonstrated plain error regarding that issue. Lackey did not

inform trial counsel about the previous sexual abuse before trial

and our review of the record reveals that there is no evidence that

Lackey's attorney knew or should have known about the prior abuse.

It must therefore follow that counsel was not ineffective when he

elicited testimony about the abuse during trial.

CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the

district court denying Lackey federal habeas relief.

AFFIRMED.