1 UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 00-40061

JAMES LEE CLARK,

Petitioner - Appellant,

VERSUS

GARY JOHNSON, Director, Texas Department of Criminal Justice,

Institutional Division,

Respondent - Appellee.

Appeal from the United States District Court

For the Eastern District of Texas, Beaumont Division

September 12, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Texas death row inmate James Lee Clark requests that we grant

a certificate of appealability as required by 28 U.S.C. § 2253(c)

before an appeal may be taken from the district court’s denial of

habeas relief. We deny Clark’s request.

I. FACTS and PROCEDURAL BACKGROUND2

In the early morning of June 7, 1993, James Lee Clark and

James Brown arrived at a Texaco store in Denton, Texas, and asked

the store clerk to call an ambulance for Brown who had suffered a

g unshot wound. Subsequent investigation revealed that Brown

accidentally shot himself in the leg at point blank range with a

shotgun while he and Clark were assaulting Shari Catherine “Cari”

Crews (16 years old ) and Jesus Garza (17 years old) at Clear Creek.

Police recovered both bodies from the creek and determined that

Crews had been sexually assaulted by Clark, as verified by DNA

evidence, and then killed with a single shotgun wound (a contact

wound) to the back of the head. Garza also died from a single

shotgun wound, but it was to the left side of his chin or jaw.

Powder residue revealed a short muzzle-to-wound distanc e, but it

was not a contact wound. Police also recovered a 12 gauge double

barrel shotgun and a .22 caliber rifle from the crime scene.

Furthe r investigation revealed that Clark and Brown, both

parolees, stole the shotgun and rifle in car burglaries on June 4,

1993. The stock of the rifle had been shortened and police found

the sawed off portion while searching Clark’s residence; the stock

of the shotgun was cracked. The search of Clark’s residence also

produce d tennis shoes splattered with the blood of Brown, Crews,

and Garza. During interrogation, Clark stated that Brown

instigated the incident; shot himself while using the shotgun as a

bludgeon to strike Garza in the head; and, after suffering the

severe gunshot wound to the leg, shot and killed both victims.3

Brown contended that Clark killed both victims.

Clark was indicted on the charge of capital murder arising out

of the June 7, 1993, robbery, sexual assault, and death of Crews.

Clark was convicted of the capital murder on April 29, 1994, and he

was sentenced to death on May 3, 1994. The conviction and sentence

were affirmed by the Texas Court of Criminal Appeals on October 2,

1996. On October 15, 1996, Clark’s trial attorneys informed him

that they would no longer represent him, and on the following day

Clark filed a p ro se motion for appointment of counsel to pursue

state habeas relief. Clark also filed a pro se motion on October

18, 1996, for an extension of time to file a motion for rehearing

by the Court of Criminal Appeals. Although this motion was granted

and the time extended until November 11, 1996, no motion for

rehearing was filed.

The Court of Criminal Appeals appointed counsel for Clark to

pursue collateral proceedings on April 9, 1997. Clark subsequently

applied for a writ of habeas corpus in the trial court on October

6, 1997, challenging the validity of his conviction and sentence by

asserting eleven grounds fo r relief. Without holding an

evidentiary hearing, the trial court entered findings of fact and

conclusions of law. The Court of Criminal Appeals reviewed the

record, adopted the trial court’s findings and co nclusions (with

the exception of finding of fact number ten, which it found

unsupported by the record), and denied habeas relief on July 8,

1998.4

On July 27, 1998, Clark filed a petition for habeas relief in

the federal district court asserting five grounds for relief: (1)

the prosecutor suppressed exculpatory information; (2) the

petitioner received a disproportionate sentence given his role in

the crime; (3) the trial court’s failur e to instruct the jury on

the unavailability of parole during the initial thirty-five years

of a life sentence violated due process of law; (4) the petitioner

was denied effective assistance of co unsel during direct appeal;

and (5) the petitioner was denied effective assistance of counsel

when his appointed counsel failed to present available evidence

during the punishment stage. Without allowing for discovery or

holding an evidentiary hearing, and after conducting a de novo

review of the magistrate’s report and overruling Clark’s objections

ther eto, on December 13, 1999, the district court adopted the

magistrate’ s conclusions of law and findings of fact, and denied

the petition for habeas corpus.

On January 12, 2000, Clark timely filed a notice of appeal and

simultaneously applied to the district court for a certificate of

appealability (COA) as required by 28 U.S.C. § 2553(c) to obtain

review in this court of the denial of federal habeas relief.

Clark’s application urged the same five argum ents that were

rejected by the district court, and it also sough t to appeal the

district court’s refusal to permit discover y or to conduct an

evidentiary hearing regarding the first five claims f or relief.

The district court denied COA as to all six claims on January 28,5

2000.

II. DISCUSSION

Clark seeks a COA from this court on five constitutional

issues: (1) the prosecution’s violation of Clark’s right to due

process of law by its failure to disclose to Clark’s trial counsel

favorable, material evidence as required by Brady v. Maryland

, 373

U.S. 83 (1963); (2) the violation of Clark’s Eighth and Fourteenth

Amendment rights to be free from cruel and unusual punishment

resulting fr om the prosecution’s inconsistent argument in a

subsequent related trial as to the identity of the shooter and the

state trial court’s jury instructio ns, which permitted a capital

murder conviction and a sentence of death without a finding that

Clark was the actual killer, had attempted to kill, or had intended

that a human life be taken; (3) the v iolation of Clark’s due

process rights resulting from the trial court’s failure to instruct

the jury that Clark would be ineligible for parole for thirty-five

years if senten ced to life imprisonment; (4) the denial of

effective assistance as guaranteed by the Sixth and Fourteenth

Amendments at a critical stage during Clark’s direc t appeal that

precluded him from seeking a rehearing in the Court of Criminal

Appeals and a petition for writ of certiorari to the United States

Supreme Court; and (5) the denial of effectiv e assistance of

counsel at the punishment stage of the capital murder trial during

which Clark’s counsel presented no favorable evidence despite its

availability, in violation of the Sixth and Fourteenth Amendments.6

Clark additionally challenges the federal district court’s refusal

to permit discovery or to hold an evidentiary hearing to determine

the validity of Clark’s claim of a Brady violation and of

ineffective assistance of counsel at the punishment stage.

T his case is governed by the AEDPA because Clark’s petition

for federal habeas relief was filed on July 27, 1998, after the

AEDPA effective date of April 24, 1996. S ee Green v. Johnson

, 116

F.3d 1115, 1119-20 (5 th Cir. 1997). As Clark seeks to appeal “the

final order in a habeas corpus proceeding in which the detention

complained of arises out of process issued by a State court,” he

must first obtain a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may

issue only if Clark “has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Such a

showing requires the applicant to demonstrate that the issues are

debatable among jurists of reason; that a court could resolve the

issues in a different manner; or that the questions are adequate to

deserve encouragement to procee d further.” H ill v. Johnson

, 210

F .3d 481, 484 (5 t h Cir. 2000) (citing and quoting Drinkard v.

Johnson

, 97 F.3d 751, 755 ( 5 th Cir. 1996), o verruled in part on

other grounds by Lindh v. Murphy

, 521 U.S. 320, 3 26 (1997) and

Williams v. Taylor

, 120 S.Ct. 1 495 (2000)) (internal quotation

marks and additional citations omitted). Where, as here, the

district court has rejected a prisoner’s constitutional claims on

the merits, the applicant must demonstrate that reasonable jurists

would find the district court’s assessment of t he constitutional7

claims debatable or wrong. S ee Hernandez v. Johnson

, 213 F.3d 243,

248 (5 th Cir. 2000)(citing Slack v. McDaniel

, 120 S.Ct. 1595, 1603-

04 (2000)). “We resolve doubts about whether to grant a COA in [a

petitioner’s] favor, and we may consider the severity of his

penalty in determining whether he has met his ‘substantial showing’

burden.” H ill

, 210 F.3d at 484 (citing Fuller v. Johnson

, 114 F.3d

491, 495 (5 th Cir. 1997), cert. denied , 522 U.S. 963 (1997)).

a) Brady due process violation claim.

In Brady v. Maryland

, the Supreme Court held that a prosecutor

must disclose evidence to a criminal defendant if that evidence is

favorable to the defendant and material to the defendant's guilt or

punishment. 3 73 U.S. at 87. The Supreme Court has found evidence

material “if there is a reasonable probability that , had the

evidence been disclose d to the defense, the result of the

proceeding would have been different.” U nited States v. Bagley

,

473 U.S. 667, 682 (1985). “The question is not whether the

defendant would more likely than not have received a different

verdict with the evidence, but whether in its absence he received

a fair trial, understood as a trial resulting in a verdict of

confidence. A ‘reasonable probability’ of a different result is

accordingly shown when the government’s evidentiary suppression

‘undermines confidence in the outcome of trial.’” K yle v. Whitley

,

514 U.S. 419, 434 (1995)(citing Bagley , 473 U.S. at 678).

Clark maintains that during his capital murder trial the state

prosecutor argued that Clark had shot Cari Crews and Jesus Garza,1 Because the murder weapon was a double barrel shotgun and

because Brown was accidentally shot in the leg prior to the murders

before Crews and Garza were killed, someone must have unloaded the

spent cartridge and reloaded the shotgun.

8 whereas at the subs equent trial of Clark’s co-defendant, James

Brown, the prosecutor argued that Brown was the lone triggerman in

the murders. Allegedly, the prosecutor’s arguments at the Clark

trial were based upon the testimony of Dr. John Kristofferson,

Brown’s orthopedic surgeon , who opined that Brown, due to the

seriousness of a gunshot wound accidentally inflicted prior to the

murders, was not likely able to walk or stand at the time Crews and

Garza were killed. This testimony, in conjunction with the expert

testimony from the autopsy physician, Dr. Marc Krouse, as to the

muzzle-to-wound distance and entry wound location regarding Garza

indicating that the shotgun was fired while being held parallel to

the front of Garza’s torso, allowed the prosecutor to argue that

Clark was the triggerman since Brown was injured too severely to

load the shotgun and because “it wasn’t just somebody laying on the

ground, aiming a shotgun at somebody and shooting them.” 1

Later, at Brown’s trial, the prosecution argu ed that Brown

was the triggerman in both murders. This argument was again based

in part upon expert testimony given by the autopsy physician, Dr.

Marc Krouse, concerning the muzzle-to-wound distance with respect

to Jesus Garza. Clark argues that in Brown’s trial Dr. Krouse’s

opinion of the muzzle-to-wound distance was “manicured” or revised

to “just a fe w inches” instead of “a couple of feet” as he had9

testified in Clark’s trial. Clark argues that the difference

between the versions of Dr. Krouse’s expert opinions was material

and favorable to hi s defense, but was not available to his trial

counsel for u se at his trial. According to Clark, had this

evidence been available to him, he too could have advanced the same

argument in his trial that the prosecution advanced subsequently in

Brown’s trial:

Whoever shot Garza right here in the left side of the

jaw, whoever shot him had that gun three or four inches

below his chin. This gun is some 24 inches long. You

heard testimony to that. Where does that put the

trigger? That’s the kind of awkward position for someone

facing Je sus [Garza] to pull the trigger and shoot him

here. What is that consistent with? What this wound and

this shotgun are consistent with is that the shooter is

sitting. And either Jesus was standing over him posing

a threat, or Jesus was as Brown said, lying unconscious

on the ground, and the shooter sitting on the ground shot

him there. That’s what the physical evidence tells you.

The district court rejected Clark’s argument, concluding that

(1) Dr. Krouse’s testimony in both trials was essentially

consistent, i.e., in both cases he in effect testified that Garza

was killed by a shot fired a short distance from his head (“a

couple of feet” in Clark’s trial and “just a few inches” in Brown’s

trial) and therefore did not suggest a suppression of evidence; and10

(2) that, assuming Dr. Krouse’s testimony was sig nificantly

inconsistent with respect to Garza’s fatal wound, that

inconsistency would not have ten ded to exculpate Clark from the

crime of which he was convicted

– the capital murder of Cari Crews.

We cannot say that the district court erred in either finding.

We find that Clark has failed to state a B rady claimas he has

failed to show suppression and materiality. Clark has presented no

proof of suppression. “[C]losing arguments are not evidence.

Moreover, a prosecutor can make inconsistent arguments at the

separate trials of codefendants without violating the due process

clause.” B eathard v. Johnson

, 177 F.3d 340, 348 (5 th Cir. 1999).

There is also no proof that the prosecution suppressed any evidence

regarding Dr. Krouse’s testimony because the testim ony was not

markedly different in the two trials. Moreover, Clark fails to

demonstrate materiality because as the prose cutor’s argument in

Brown’s case indicates, a muzzle-to-wound distance regarding Garza

of “just a few inches” does not make it any more likely that Garza

was k i lled by a shot from a sitting rather than a standing

position. Accordingly, Clark has failed to make a substantial

showing of the denial of a constitutional right with respect to his

claim of a Brady violation.

b) Enmund and Tison claim.

Clark argues that a violation of his Eighth and Fourteenth

Amendment rights resulted from the prosecution’s inconsistent

arguments regarding the identity of the actual shooter in2 Texas Penal Code §7.02(b) provides: “If, in the attempt to carry

out a conspiracy to commit one felony, another felony is committed

by one of the conspirators, all conspirators are guilty of the

felony actually committed, though having no intent to commit it, if

11 combination with the trial court’s inst ructions permitting a

conviction and death sentence without the jury finding that Clark

actually killed, attempted to kill, or intended that a human life

be taken, in violation of Enmund v. Florida , 458 U.S. 782 (1982),

and Tison v. Arizona , 481 U.S. 137 (1987).

Enmund v. Florida held that the death penalty may not be

imposed on one who “aids and abets a felony in the course of which

a murder is commi tted by others but who does not himself kill,

attempt to kill, or intend that a killing take place or that lethal

force will be employed.” 458 U.S. at 797. Sentenced to death,

Enmund had driven the “getaway” car for two others who had robbed

and killed an elderly couple. Focusing on Enmund’s individualized

culpability, the Court found that he did not kill, attempt to kill,

or intend to kill; thus, the impo sition of the death penalty was

impermissib le under the Eighth Amendment. I d. at 798. T ison v.

Arizona subsequently limited Enmund by holding that “major

participation in the felony committed, combined with reckless

indifference to human life, is sufficient to sa tisfy the E nmund

culpability requirement.” 481 U.S. at 158.

Clark contends that two different instructions violated Enmund

and Tison

. First, he argues that the use of Texas Penal Code

§7.02(b), 2 governing liability of co-conspirators, at thethe of fense was committed in furtherance of the unlawful purpose

and was one that should have been anticipated as a result of the

carrying out of the conspiracy.”

12 guilt/innocence phase violates Enmund and Tison because it does not

require the co-conspirator to have the intent to commit murder.

However, Enmund and Tison apply to the sentencing phase of the

trial and not to the guilt/innocence phase. See Enmund , 458 U.S.

at 801, and Tison

, 481 U.S. at 157. S e e also Walton v. Arizona

,

497 U.S. 639, 649 (1990)(“Enmund only places ‘a substantive

limitation on sentencing, and like other such limits it need not be

enforced by the jury.’”); Cabana v. Bullock

, 474 U.S. 376, 385

(1986)(“Rather, as the Fifth Circuit itself has recognized, Enmund

‘does not affect the state’s definition of any substantive offense,

even a capital offense.’”)(citing Reddix v. Thigpen

, 728 F.2d 705,

709 (5 th Cir. 1984)); and Cantu v. State

, 939 S.W.2d 627, 645 (Tex.

Crim. 1997)(“Both Tison and Enmund were concerned with the

implementation of the death penalty on defendants who were not

proven to have an intent to kill.”). Therefore, Clark’s argument

based on Enmund and Tison with respect to this instruction is

without merit.

Secondly, Clark contends that Special Issue Number Two, given

durin g the sentencing phase, dispensed with the requirement of

finding specific intent by allowing the jury to sentence Clark to

death on the basis that he “ant icipated” a human life would be13

taken. Relying on Texas Criminal Procedure Article 37.071, the

state court gave the following instruction:

Do you find from the evidence beyond a

reasonable doubt that the defendant, James Lee

Clark, actually caused the death of Shari

Catherine Crews, the deceased, on the occasion

in question, or if he did not actua lly cause

the decedent’s death, that he intended to kill

the deceased or another, or that he

anticipated that a human life would be taken?

You are instructed that in answering this

issue only the conduct of the defendant can be

considered, a nd that the instruction

pertaining to the law of parties heretofore

given you cannot now be considered in

answering this issue.

The jury unanimously an swered yes, and subsequently, Clark was

sentenced to death. In an unpublished decision affirming the

conviction an d sentence, the Texas Court of Criminal Appeals

stated, “The principle is well-established that when a jury returns

a general verdict and the evidence is sufficient to support a

finding of guilt under any of t he allegations submitted, the

verdict will be upheld.” Looking at the evidence, the court3 In a habeas proceeding with no evidentiary hearing, the state

court denied Clark’s petition for relief on this issue by summarily

relying on Lawton v. State

, 913 S.W.2d 542 (Tex. Crim. App. 1996).

The court stated, “[T]hat the jury may have found that appellant

only anticipated that death would result under Article 37.071 is

inconsequential to Enmund and Tison concerns; the jury had already

found that appellant intended to at least promote or assist in the

commission of an intentional murder.” 913 S.W.2d at 555. However,

Lawton is inapplicable because its holding concerned felony murder.

Furthermore, the d icta which the state court cites is also

inapplicable because it quotes Texas Penal Statute 7.02(a)(2) (“A

person is criminally respons ible for an offense committed by the

conduct of another if:...(2) acti ng with intent to promote or

assist the commission of the offense, he solicits, encourages,

directs, aids, or attempts to aid the other person to commit the

offense...”), not section 7.02(b), which is in dispute.

14 determined that it was sufficient to support the theory that Clark

murdered Crews during the cour se of committing a sexual assault. 3

Clark’s jury rendered a general verdict. As such, we cannot

be confident that the jury did not convict Clark based on his

liability as a co-conspirator in the sexual assault or robbery of

the victim. “But the conclusion that the jury may not have found

that the defendant killed, attempted to kill, or intended a killing

t ake place or that lethal force be employed does not end the

inquiry into whether Enmund bars the death sentence; rather it is

only the first step.” B ullock

, 474 U.S. at 384. Reversing the

Fifth Circuit, the Supreme Court specifically rejected the argument

that a jury alone must make the E nmund determination. S ee id.

“Rather, the [federal habeas] court must examine the entire course

of the state-court proceedings ag ainst the defendant in order to

determine whether, at some point in the process, the requisite15

factual finding as to the defendant’s culpability has been made.

If it has, the finding must be presumed correct.” Id. at 387-88.

The necessary finding of intent under Enmund may be made by a trial

court or an appellate court. Id. at 389.

The findings of th e Texas Court of Criminal Appeals are

constitutionally sufficient under E nmund and Tison

. Pursuant to

Clark’s argument that there was insufficient evidence to support a

conviction of capital murder, the court found that “a rational

trier of fact could have found the essential elements of murder in

the course of aggravated sexual assault.” The court pointed to the

DNA evidence linking Clark to the sexual assault and blood spatter

evidence linking Clark to the murder and then concluded that the

evidence was sufficient to prove murder during a sexual assault.

On a related issue of future dangerousness, the court further found

that Clark assaulted and executed Crews. (“They [Clark and Brown]

made the girl strip and apparently tied her hands with her own bra

and then appellant [Clark] brut ally sexually assaulted her--both

vaginally and anally. Appellant then put the shotgun to her head

and executed her.”) These findings show specific intent under

Enmund or at the very least, major participation in the felony

committed with reckless indifference to human life under T ison

.

458 U.S. at 797; 481 U.S. at 158. Thus, under the principles of

Bullock , there has been a “determination from [Texas’] own courts

of the factual question whether [Clark] killed, attempted to kill,16

intended to kill, or intended that the lethal force would be used.”

474 U.S. at 392. S ee also Stewart v. Col lins , 978 F.2d 199 (5 t h

Cir. 1992)(upholdin g a capital murder conviction and sentence on

the basis of the jury verdict and answers to the special issues

along with findings of the Court of Criminal Appeals). Clark has

not made a substantial showing of a denial of a constitutional

right to be free from cruel and unusual punishment under the Eighth

and Fourteenth Amendments, and no COA will issue.

c) Jury instruction due process violation claim.

Clark argues that the trial court’s failure to instruct the

jury that he would not be eligible for parole for thirty-five years

if sentenced to life imprisonment v iolated S immons v. South

Carolina

, 512 U.S. 154 (1994). However, Clark’s claim is barred

under the non-retroactivity limitation in Teague v. Lane

, 489 U.S.

233 (1989). As a threshold matter, a state prisoner must

demonstrate that the rule of which he seeks benefit is not “new.”

O’Dell v. Netherland , 521 U.S. 151, 156 (1997). A rule is new if

it “breaks new ground,” “imposes a new obligation on the States or

the Federal Government,” or was not “dictated by precedent existing

at the time the defendant’s conviction became final.” G raham v.

Collins

, 506 U.S. 461, 467 (1993)(citing Teague

, 489 U.S. at 301).

Clark urges us to adopt a rule that would allow him to present

evidence concerning his thirty-five year ineligibility for parole.

This rule is certainly new as Simmons was based on lifetime parole17

ineligibility. 512 U.S. at 169. S ee also Ramdass v. Angelone

, 120

S.Ct. 2113, 2121 (2000)(“Simmons applies only to instances where,

as a legal matter, there is no possibility of parole if the jury

decides the appropriate sentence is life in prison.”). Because

this new rule fails to meet the narrow exceptions of Teague

, namely

rules forbidding punishment of certain primary conduct or watershed

rules of criminal procedure, it may not be applied retroactively to

Clark’s trial. See also Allridge v. Scott , 41 F.3d 213, 222 n.11

(5 th Cir. 1994) (“Specifically, if we were to conclude...that due

process entitles a capital defendant to introduce evidence of

parole ineligibility whenever the state argues the defendant is a

future danger, regardless of whether the state statutorily provides

for parole ineligibilit y, such a conclusion certainly would

constitute a ‘new rule’ and therefore would be barred under

Teague.”). Accordingly, Clark has failed to make a substantial

showing of the denial of constitutional right of due process on

this claim, and no COA will issue.

d) Ineffective assistance of counsel claims.

To prevail on an ineffective assistance of counsel claim,

Clark must show that his coun sel's performance was deficient and

that the deficiency prejudiced his defense. S ee Strickland v.

Washington

, 466 U.S. 66 8 (1984). Counsel's performance is

deficient when the representation falls below an objective standard

of reasonableness. S ee id. and Davis v. Johnson

, 158 F.3d 806, 8124 This Circuit’s decision in Jackson v. Johnson

, 217 F.3d 360 (5 th

Cir. 2000), forecloses the retroactivity issue presented by Teague

v Lane

, which prevented granting habeas relief based on a rule

announced after a defendant’s conviction. The Fifth Circuit found

that a claim of ineffective assistance of counsel based on a

failure to file for rehearing was a narrow exception to Teague

. 217 F.3d at 364.

5 Because there is no constitutional right to c ounsel for

discretionary appeals, we need not analyze this claim under

Strickland

.

18 (5 th Cir. 1998). In assessing counsel's performance, we must make

every effort "to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel's challenged conduct, and

t o evaluate the conduct from counsel's perspective at the tim e."

Strickland

, 466 U.S. at 689. There is a strong presumption that

counsel's conduct falls withi n the wide range of objectively

reasonable conduct. See id.

To establish that the counsel's deficiency prejudiced his

defense, Clark "must show that there is a reasonable probability

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

proceeding would have been different." I d. at 694. "A reasonable

probability is a probability sufficient to undermine confidence in

the outcome." Id.

1. Ineffective assistance of counsel on direct appeal. 4

Clark argues that he was denied his right to counsel in

preparing a motion for rehearing to the Court of Criminal Appeals

and a writ of certiorari to the United States Supreme Court. 5 This6 “The defend ant needs an attorney on appeal not as a shield to

protect him against being ‘haled into court’ by the State and

stripped of his presumption of innocence, but rather as a sword to

upset the prior determination of guilt.” 417 U.S. at 610-11.

However, in Blankenship v. Johnson

, 118 F.3d 312, 317 (5 t h Cir.

1997), the Fifth Circuit found a right to counsel on staterequested discretionary review.

19 argument is unsupported as the Supreme Court has not extended the

right of counsel to discretionary review. D ue process does require

the appointment of effective counsel for a criminal appellant

pursuing a first appeal of right. Evitts v. Lucey , 469 U.S. 387,

392 (1985). However, R oss v. Moffitt

, 417 U.S. 600, 610 (1974),

held that it was constitutional under due process to not provide

counsel on discretionary appeal. 6 The Texas Constitution provides,

“ The appeal of all cases in which the death penalty has been

assessed shall be to the Court of Criminal Appeals.” Tex. Const.

Code Ann. Art. 5, § 5 (West 2000). Therefore, the right of appeal

is to the Court of Criminal Appeals, and not for a petition for

rehearing to that court or a petition to the United States Supreme

Court. S ee Ayala v. State

, 633 S.W.2d 526, 528 (Tex. C rim. App.

1982)(holding that “[i]ndigent appellants are not deprived of the

effective assistance of counsel if appointed counsel fail to file

a petition for discretion ary review of a court of appeals’

decision.”)(citing Wainwright v. Torna

, 455 U.S. 586 (1982)). The

Supreme C ourt itself has defined its review as discretionary and

found the argument that a state should provide counsel to one20

petitioning the Court to be “unsupporte d by either reason or

authority.” R oss v. Moffitt

, 417 U.S. at 616-17. Furthermore, the

Fifth Circuit has pointedly stat ed, “[T]here can be no question

that the granting of a motion for rehearing lies entirely within

the discretion of a court of appeals. Rehearing at that point is

by no means an appeal of right.” J ackson

, 217 F.3d at 365. Also,

a Texas court has held that because there is no right to counsel

for a discretionary review, the appellate counsel has no duty to

even advise the appellant about the merits of the review. E x parte

Wilson

, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). Accordingly,

Clark has failed to make a substantial showing of the denial of a

constitutiona l right on this claim as there is no constitutional

right, and no COA will issue.

2. Ineffective assistance of counsel at punishment phase of trial.

Clark argues that he was denied e ffective assistance of

counsel at the punishment phase of his trial when appointed counsel

failed to present any available evidence at the punishment phase.

The defendant bears the burden of showing by a preponderance of

evidence that he was deprived of the right of effective counsel.

Martin v. Maggio

, 711 F.2d 1273, 1279 (5 th Cir. 1983). “Failure to

meet either the deficient performance prong or the prejudice prong

will defeat a claim for ineffective assistance of counsel.” U nited

States v. Stewart , 207 F.3d 750 (5 th Cir. 2000).

Clark fails to meet his burden of proof for both prongs of the21

test. First he fails to show deficient performance. Clark argues

that it was an unsound trial strategy to not call subpoenaed

witnesses, but he does not explain who was subpoenaed and the

importance of their testimony. The record only indicates that

Clark had an extensive criminal record; thus, it appears counsel

made a “strategy choice...well within the range of professionally

reasonable judgments.” S trickland

, 466 U.S. at 699. S ee Jones v.

Thigpen

, 788 F.2 d 1101 (5 t h Cir. 1986)(finding failure to present

mitigating fact ors of youth and mental retardation was deficient

performance). Furthermore, Clark himself testified that he made

the decision not to call any witnesses after talking with his

attorneys the day before. “‘[M]eaningful discussion with one’s

client’ is one of the ‘cornerstones of effective assistance of

counsel.’” M artin

, 711 F.2d at 1280 (citing Gaines v. Hopper

, 575

F.2d 1147, 1149-50 (5 th Cir. 1978)). Secondly, Clark attempts to

argue that a failure to put on evidence constitutes a constructive

denial of counsel and thus prejudice is presumed. However, there

is a “strong presumption of reliability” attached to judicial

proceedings. Roe v. Flores-Ortega , 120 S. Ct. 1029, 1037 (2000).

Unlike in Flores-Ortega , where counsel neglected to file a notice

of appeal, Clark’s counsel subpoenaed witnesses in preparation, but

ultimately allowed Clark to decide whether to present them. These

actions do not constitute a denial of counsel, actual or

constructive. Even if we assume Clark’s counsel’s performance was7 “If the applicant has failed to develop the factual basis of a

claim in State court proceedings, the court shall not hold an

evidentiary hearing on the claim unless the applicant shows that

(A) the claim relies on

(i) a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme co urt, that was previously

unavailable; or

(ii) a factual predicate that could not have been previously

discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish

by clear and convincing evidence that but for constitutional error,

no reasonable factfinder would have found the applicant guilty of

the underlying offense.”

22 defective, Clark has failed “to show the existence of evidence of

s ufficient quality and force to raise a reasonable probability

that, had it been presented to the jury, a life sentence would have

resulted.” Wilkerson v. Collins , 950 F.2d 1054, 1065 (5 t h Cir.

1992). Accordingly, Clark has failed to make a substantial showing

of the denial of a constitutional right on this claim, and no COA

will issue.

e) Evidentiary hearing claim.

AEDPA governs requests for evidentiary hearing under 28 U.S.C.

§ 2254(e)(2). 7 After that standard is met, the district court’s

denial is reviewed for abuse of discretion. M urphy v. Johnson

, 205

F.3d 80 9, 815 (5 t h Cir. 2000). Assuming Clark meets the AEDPA

standard because he was denied a hearing in state court, see id. at

815, nevertheless, the district court did not abuse its discretion

in failing to grant a h earing. Our resolution of the issues

demonstrates that Clark has failed to show a signific ant factual23

dispute on his B rady claim that could be addressed by a hearing

,

and failed to show how his claim of ineffective assistance of

counsel would be advanced by a hearing. No COA will issue on the

refusal of the district court to hold an evidentiary hearing.

III. CONCLUSION

For the foregoing reasons, we deny Clark’s request for a COA

on all issues.

Application DENIED.