* Pursuant to 5TH CIR. R. 47.5, this 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-70035

DALE LEO BISHOP

Petitioner-Appellant

v.

CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT

OF CORRECTIONS

Respondent-Appellee

Appeal from the United States District Court 

for the Northern District of Mississippi

USDC No. 1:04-CV-319

Before KING, DAVIS and CLEMENT, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Dale Leo Bishop requests a certificate of appealability

(“COA”). His request is denied.

I. FACTS AND PROCEEDINGS

Bishop, a prisoner sentenced to death and currently in the custody of the

Mississippi Department of Corrections, filed this application for a COA after his

United States Court of Appeals

Fifth Circuit

F I L E D

February 11, 2008

Charles R. Fulbruge III

Clerk
No. 07-70035

1 The background facts are taken from the statement of facts in the Supreme Court of

Mississippi’s opinion in Bishop v. State, 812 So. 2d 934, 937–38 (Miss. 2002) (en banc), and

based upon a record review of the trial transcript.

2 He later admitted to police that the excuse was a pretense to bring the hammer into

the car. 

3

In its opinion, the Supreme Court of Mississippi noted that a discrepancy existed as

to whether Jessie initially hit Gentry with his hands or with the hammer. Id. at 938 n.4.

2

petition for a writ of habeas corpus and his request for a COA was denied by the

district court.

A. Factual History1

On December 10, 1998, Bishop consumed alcohol at the apartment of

Ricky Myhand and Rachel Dobbs in Saltillo, Mississippi. Also present in the

home were Marcus James Gentry, Charlie Rakestraw, Jessie Johnson, and his

brother, Cory Johnson. After deciding to purchase more alcohol, Jessie Johnson,

Bishop, Myhand, and Gentry left the apartment in Gentry’s vehicle. Bishop,

who was a carpenter by trade, brought with him a 28-ounce Vaughn California

framing straight claw hammer, which he claimed he needed in order to work on

his truck.2 Upon reaching the store, they found it closed, and Gentry began

driving back to Myhand’s apartment. Jessie Johnson, who was seated in the

passenger’s seat, accused Gentry of “ratting” on his brother, Cory, regarding

incidents leading to grand larceny and burglary charges. Although Gentry

denied the accusations, Jessie struck Gentry between the eyes with Bishop’s

hammer.3 After the car coasted to a stop, Bishop, who was seated behind

Gentry, grabbed Gentry in a headlock and punched him while Jessie hit Gentry

again with the hammer. Gentry was moved to the passenger’s seat and Jessie

took control of the car, moving it down a dirt road. After Jessie stopped the car,

Gentry ran from the vehicle. Jessie told Bishop to get Gentry and bring him

back. Bishop complied, returning with Gentry approximately five minutes later,

and the men forced Gentry to his knees in front of the car.
No. 07-70035

3

Bishop and Jessie kicked Gentry numerous times and Jessie struck Gentry

severaltimes with the hammer. At some point during the beating, Bishop asked

Myhand to hold Gentry while Bishop retrieved more alcohol for himself and

Jessie. When the beating finally ended, Bishop dislodged his hammer from

Gentry’s throat, and Jessie and he drug Gentry’s body into nearby bushes.

Jessie, Bishop, and Myhand then left the scene to return to Myhand’s

apartment. On the way to the apartment, Jessie and Bishop talked about

finding a shovel and burying Gentry’s body.

Arriving at Myhand’s apartment, Jessie and Bishop washed off and were

given clean clothes by Myhand. When all of the visitors had left the apartment,

Myhand and Dobbs reported the crime to police. Myhand took officers to the

murder site, where they recovered Gentry’s body. Gentry’s car was there and a

shovel was found nearby. It is assumed that Jessie and Bishop fled the scene

and hid in the woods when the police arrived. The pair were finally

apprehended on December 13, 1998, and were indicted for capital murder during

the course of kidnapping. The two were tried separately.

A forensic pathologist performed Gentry’s autopsy and testified at Bishop’s

trial that there were twenty-three injuries to Gentry’s head, neck, and hands,

and that these injuries were produced either by a blunt object with enough force

to break the skin or by a sharp-edged object such as a claw hammer. He also

testified that Gentry’s injuries to his hands, forearms, and fingers were

consistent with defensive wounds and that Gentry died of “cranial cerebral

trauma, secondary to blunt force trauma to the head,” and also from “lacerations,

tears of the voice box, with aspirations of blood.” Bishop did not testify at trial,

but the trial judge admitted into evidence his December 13, 1998 statement to

police.

A jury found Bishop guilty of capital murder with an underlying felony of

kidnapping. He waived his right to sentencing by a jury, and Lee County Circuit
No. 07-70035

4

Judge Frank A. Russell sentenced him to death, finding beyond a reasonable

doubt that he contemplated the use of lethal force and that the crime was

especially heinous, atrocious, or cruel.

B. Procedural History

Bishop pursued a direct appeal. The Supreme Court of Mississippi

affirmed Bishop’s conviction and sentence in February 2002 and denied his

motion for rehearing in April 2002. See Bishop v. State, 812 So. 2d 934, 937

(Miss. 2002) (en banc). Bishop filed a petition for a writ of certiorari to the

United States Supreme Court which was denied on October 21, 2002. See

Bishop v. Mississippi, 537 U.S. 976 (2002). Bishop then returned to the Supreme

Court of Mississippi and filed an application for post-conviction habeas relief,

alleging eight grounds for relief:(1) ineffective assistance of counsel,(2) violation

of his Eighth Amendment rights by an unconstitutional imposition of the death

penalty, (3) unconstitutional errors and omissions in sentencing, (4) erroneous

jury instructions, (5) the failure of the court to classify him as mentally retarded

for purposes of exclusion from imposition of the death penalty, (6) erroneous

introduction of the 911 tape recording into evidence, (7) disproportionate

imposition of the death penalty, and (8) denial of constitutional rights due to the

cumulative effect ofthe errors attrial. The Supreme Court of Mississippi denied

his application for habeas relief in July 2004. See Bishop v. State, 882 So. 2d

135, 156 (Miss. 2004) (en banc). Bishop then appealed that denial of postconviction relief to the United States Supreme Court, which denied his petition

for a writ of certiorari. See Bishop v. Mississippi, 543 U.S. 1189 (2005). 

Bishop next sought relief by filing a petition for a writ of habeas corpus in

the United States District Court for the Northern District of Mississippi on

March 28, 2005, which he amended on October 16, 2005. He alleged thirteen

grounds for relief. The district court denied Bishop’s petition for habeas relief

and entered final judgment on August 16, 2007. See Bishop v. Epps, No. 1:04-
No. 07-70035

5

CV-319, 2007 WL 2363465, at *36 (N.D. Miss. Aug. 16, 2007). The district court

denied Bishop’s motion for issuance of a COA dated September 13, 2007, in

which he raised four claims, including (1) ineffective assistance of post-conviction

counsel, (2) ineffective assistance of trial counsel, (3) improper jury instruction,

and (4) improper waiver of jury sentencing. Bishop v. Epps, No. 1:04-CV-319,

2007 WL 2727228, at *1, 5 (N.D. Miss. Sept. 17, 2007). Bishop now moves for

issuance of a COA in this Court, raising the same claims he presented to the

district court. 

II. STANDARD OF REVIEW

Bishop filed his federal habeas petition after the effective date of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). Accordingly, the

petition is subject to AEDPA’s requirement that Bishop obtain a COA before an

appeal can be taken to this Court. See 28 U.S.C. § 2253(c); Miller-El v. Cockrell,

537 U.S. 322, 335–36 (2003). In determining whether a COA should be issued,

this Court limits its examination to a “threshold inquiry into the underlying

merit of [the petitioner’s] claims.” Id. at 327. “This threshold inquiry does not

require full consideration of the factual or legal bases adduced in support of the

claims. In fact, the statute forbids it.” Id. at 336. 

For claims that were rejected on the merits, a COA will be granted if the

petitioner makes “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). To

meet this standard, Bishop must demonstrate that “reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336 (internal

quotations omitted). The debatability of the underlying constitutional claim is

at issue, not the resolution of that debate. Id. at 342. 
No. 07-70035

4 Bishop’s claim relating to the qualifications and ineffectiveness of post-conviction

counsel can be found in Subpart G of “Claim IV Ineffective Assistance of Counsel,” in “Claim

V Ineffective Assistance of Post-Conviction Counsel,” and in an unnumbered section entitled

“Procedural Defaults.” 

6

For claims that have been rejected on procedural grounds, however, the

petitioner must show that “jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Slack, 529 U.S. at 484. 

III. DISCUSSION

A. Ineffective Assistance of Post-Conviction Counsel4

Section 2254 of Title 28 of the United States Code guarantees postconviction habeas relief only on the basis that a petitioner’s conviction or

sentence violates the Constitution or laws of the United States. Although

individual states, for independent reasons, may decide to create a right to

counsel for post-conviction review, the decision has no basis in the Constitution.

See, e.g., Jackson v.State, 732 So. 2d 187, 190–91 (Miss. 1999) (categorizing postconviction efforts as “an appendage, or part, of the death penalty appeal process

at the state level” and granting attorney compensation and litigation expenses

to petitioner, even though the grant is not required by the Constitution or by

Mississippi’s Uniform Post-Conviction Collateral Relief Act). But the Supreme

Court has “never held that prisoners have a constitutional right to counsel when

mounting collateral attacks upon their convictions.” Pennsylvania v. Finley, 481

U.S. 551, 555 (1987) (citing Johnson v. Avery, 393 U.S. 483, 488 (1969)). The

Finley Court wrote: “We think that since a defendant has no federal

constitutional right to counsel when pursuing a discretionary appeal on direct

review of his conviction, a fortiori, he has no such right when attacking a

conviction that has long since become final upon exhaustion of the appellate
No. 07-70035

7

process.” Id. Because Bishop has no right to counsel in post-conviction

proceedings, he can allege no unconstitutional denial of the effective assistance

of post-conviction counsel. See Wainwright v. Torna, 455 U.S. 586, 587–88

(1982); see also 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of

counsel during Federal or State collateral post-conviction proceedings shall not

be a ground for relief in a proceeding arising under section 2254.”).

B. Ineffective Assistance of Trial Counsel

Bishop argues that his trial counsel’s performance was deficient because

they failed to: (1) request psychiatric evaluations and testimony, (2) investigate

and present evidence of mitigating circumstances, (3) present a defense in the

guilt-innocence phase of the trial, and (4) prepare adequately for trial. In

deciding an ineffective-assistance-of-counsel claim, this Court first determines

whether the counsel’s performance was deficient. Turner v. Quarterman, 481

F.3d 292, 298 (5th Cir. 2007). “This requires [the defendant to show] that

counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Id. Second, this Court

determines whether the deficient performance prejudiced the defense. Id. “This

requires [the defendant to show] that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable.” Id. 

In sum, when determining whether to grant Bishop’s application for a

COA, this Court must determine whether reasonable jurists could debate

whether Bishop’s counsel’s performance was deficient, and, if so, whether that

performance prejudiced the defense. The performance of counsel is evaluated in

light of what was known to counsel at the time of his conduct, and the petitioner

bears the burden of demonstrating that the choices made were not within the

realm of trial strategy. See Strickland v. Washington, 466 U.S. 668, 689 (1984).

In some circumstances,the ineffective assistance of counsel can constitute

cause sufficient to overcome a procedural default. See Coleman v. Thompson,
No. 07-70035

8

501 U.S. 722, 753–54 (1991). But a petitioner making this claim with the

purpose of having a substantive claim reviewed on its merits must ordinarily

have presented the ineffective-assistance-of-counsel claim as an independent

claim in state court before attempting to use it as cause to excuse a procedural

defect. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Therefore, if the

ineffective-assistance-of-counsel claim has been defaulted, cause and prejudice

must be established for the defaulted claim independently before the merits of

the underlying claim may be considered.

1. Failure to request psychiatric evaluations and testimony

Bishop contends that his counsel was ineffective in failing to investigate

Bishop’s mental status at trial and present mitigating evidence of his mental

problems. The trial court denied as untimely his request for additional funds for

independent psychiatric evaluation after an unfavorable examination at a state

hospital. Bishop appealed that denial, but he did not raise a claim for ineffective

assistance of counsel based on his attorney’s failure to obtain further

examination from mental health experts for the purpose of mitigation. Because

Bishop did not raise his ineffective-assistance-of-counsel claim before the state

court, the district court found his claim to be unexhausted for purposes of

collateral review. 

Because this claim was denied on procedural grounds, we may issue a

COA only if“jurists of reason would find it debatable whether the petition states

a valid claim of a denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added). Bishop

acknowledges, but provides no rebuttal to, the district court’s finding that the

ineffective-assistance-of-counsel claim is procedurally barred. We hold that

reasonable jurists would not debate the fact that this claim is procedurally

barred because it was never raised before the state court. Therefore, Bishop fails
No. 07-70035

5 The transcript shows that the judge asked Bishop various questions related to his

competency and his volition to waive his right to sentencing by a jury. After acknowledging

that he wished to waive this right, the judge allowed counselto ask Bishop questions regarding

his decision as well. Bishop answered affirmatively in open court to the following questions

by his own counsel: 

“Mr. Bishop, have you been advised against doing this by [counsel]?” 

“Is this something that you have thought about thoroughly before today?” 

“And did you advise me of this earlier on in my representation of you?” 

“Do you understand that you might be giving up some issues that may come up

9

to satisfy the second prong of our inquiry; we have no need to examine whether

reasonable jurists would debate whether he states a valid claim of a denial of a

constitutional right. 

2. Failure to investigate and present evidence of mitigating circumstances

Bishop argues that we should issue a COA for the resolution of his claim

that counsel were ineffective in failing in their duty to investigate and present

mitigating evidence. He presented this claim of ineffective assistance to the

Supreme Court of Mississippi on post-conviction review, but that court rejected

the claim. The district court denied subsequent habeas relief, finding that the

decision by the Supreme Court of Mississippi was not unreasonable because

Bishop had instructed trial counsel notto present mitigating evidence if he were

convicted. Bishop now argues that he was “on board” with his counsel’s

requests for independent psychiatric experts. He contends that no mitigating

evidence was prepared because his motions for experts were denied as untimely.

Bishop believes that his counsel was not only deficient by filing the motions

untimely, but by failing to collect additional mitigating information for

presentation after the verdict of guilty. He rejects the district court’s finding

that he instructed counsel not to present mitigating information.

A review of the record, however, plainly supports the findings by Supreme

Court of Mississippi and the district court. The record reveals that, against the

advice of counsel, Bishop voluntarily waived his right to a jury in the sentencing

phase, as well as his right to present mitigating evidence.5 Furthermore, he
No. 07-70035

on the appeal of this case before the Mississippi Supreme Court by waiving this

sentencing hearing before the jury?” 

“Is it your firm desire to do this?”

In response to further questioning by the judge, Bishop then stated that he felt he had

been properly advised by counsel and that he was satisfied with their services. The State then

presented aggravating factors for consideration in sentencing. When asked to present

mitigating circumstances, Bishop’s counsel responded, “Your Honor, in accordance with our

client’s wishes, we offer nothing in mitigation.” The judge then asked Bishop directly if he had

any desire to offer mitigating facts or circumstances, but Bishop indicated that he had none.

6 Although Bishop chose not to present any mitigating evidence on his own behalf, he

made a few statements to the victim’s family and to the judge after the judge read the verdict:

For what I did, I deserve to die. I ain’t gonna ask this Court to spare my life and

let me grow old. I ain’t gonna do it. . . . These people here, some of them would

like to kill me. They can’t. They don’t have that authority. . . . But [judge] you

do. You’ve got that authority. . . . So I’m asking you to do what they can’t do,

kill me for what I’ve done. I deserve it. I know it. I want you to sentence me

to death. That’s it.

10

actually requested the death penalty after the jury found him guilty of capital

murder.6 When a petitioner instructs his counsel notto proffer any mitigating

evidence, a claim for failing to investigate further and present mitigating facts

cannot stand. See Schriro v. Landrigan, 127 S. Ct. 1933, 1941–42 (2007).

Because the district court reasonably concluded that Bishop had instructed his

counsel not to present mitigating evidence on his behalf, the district court did

not abuse its discretion in finding that Bishop could not meet statutory

requirements for granting habeas relief. Even if Bishop’s counsel uncovered

mitigating facts, the state court and the district court both reasonably

determined that he would have prohibited his counsel from presenting those

facts. Therefore, we hold that reasonable jurists would not debate this

conclusion.

3. Failure to present a defense in the guilt-innocence phase of the trial

Bishop argues that his counsel was ineffective in presenting an adequate

defense because they failed to challenge the testimony of Myhand or to discover

timely evidence that Myhand’s clothes had been bloodied. Bishop contends that
No. 07-70035

11

his counsel“was unprepared to cross-examine the State’s star witness [Myhand]

who had never been charged with any crime but readily admitted that[Bishop’s]

involvement in the crime was similar to his own involvement.” Bishop believes

that “[h]ad the incriminating evidence been timely produced, [he] could have

effectively used that information at trial, and more importantly, as well as at a

sentencing proceeding.” Bishop raised this issue in the form of an ineffectiveassistance-of-counsel claim before the Supreme Court of Mississippi, which noted

that Bishop had failed to allege any specific facts to show the ineffectiveness of

his counsel. 

A review ofthe record reveals thatthe State called every germane witness

to the case, with the exception of Bishop himself. Bishop’s counsel crossexamined each witness, and specifically attempted to impeach Myhand’s

testimony and highlightthe weaknesses ofthe State’s case in closing arguments,

including arguing that the elements of the crime had not been proven beyond a

reasonable doubt. Upon learning that Bishop did not intend to testify himself

or present a defense case-in-chief, the court questioned Bishop directly to

confirm that this was his decision. Based upon the record, we hold that Bishop

has not demonstrated any deficient performance by counsel, and even if counsel’s

performance was deficient, he has not demonstrated that he was prejudiced by

counsel’s performance because the only witness left to call was himself and he

had admitted his guilt to police upon questioning.

Further, Bishop has labeled his claim as an ineffective-assistance-ofcounsel claim, not a claim relating to a discovery violation regarding his receipt

of the information that Myhand had blood on his clothes in connection with this

crime. We have held that in deciding an ineffective-assistance-of-counsel claim,

a court makes no decision on the merits ofthe underlying substantive claim. See

Steward v. Cain, 259 F.3d 374, 377–79 (5th Cir. 2001). Therefore, any claim
No. 07-70035

12

relating to underlying substantive merits, such as Bishop’s claim of discovery

violations, is not presently before this Court.

4. Failure to prepare adequately for trial 

Bishop argues that we should issue a COA because his counsel were

ineffective for failure to prepare adequately for trial. Bishop, however, fails to

allege any specific facts or authority to support his claim of ineffective assistance

of counsel. Therefore, we hold that he has waived his claim. See FED. R. APP. P.

28(a)(9)(A) (requiring petitioner’s arguments to contain his “contentions and the

reasons for them, with citations to the authorities and parts of the record on

which the appellant relies”); Hughes v. Dretke, 412 F.3d 582, 597 (5th Cir. 2005)

(“In his petition to this Court, Petitioner merely lists his ineffective assistance

complaints in summary fashion, without discussing the legal and factual basis

for each complaint. In failing to brief his ineffective assistance of counsel

complaints adequately, Petitioner has waived those claims.”).

C. Improper Jury Instruction 

Bishop claims that the jury instruction regarding aiding and abetting

given at trial allowed him to be convicted of capital murder without the jury

finding proof of each element of the crime beyond a reasonable doubt. On direct

appeal, the Supreme Court of Mississippi found this claim to be barred because,

although Bishop objected to the jury instruction for aiding and abetting as

confusing, he did not objectto the correctness ofthe instruction. Bishop v. State,

812 So. 2d 934, 942–44 (Miss. 2002) (en banc). The court nevertheless addressed

the merits of his claim and found the instruction to contain harmless error. Id.

at 944.

The district court likewise determined that Bishop’s claim was

procedurally barred for failure to preserve it for appeal, but nevertheless

concluded that Bishop was not entitled to habeas relief. Bishop v. Epps, No.

1:04-CV-319, 2007 WL 2363465, at *22 (N.D. Miss. Aug. 16, 2007). “A deficient
No. 07-70035

13

jury charge is not grounds for federal habeas relief unless the instruction was,

in and of itself, violative of a constitutional right.” Id. (citing Estelle v. McGuire,

502 U.S. 62, 71–72 (1991)). The question in such a collateral proceeding is not

whether “the instruction is undesirable, erroneous, or even ‘universally

condemned.’” Cupp v. Naughten, 414 U.S. 141, 146 (1973). Rather, the question

is “whether the ailing instruction by itself so infected the entire trial that the

resulting conviction violates due process.” Id. at 147. 

Here, Bishop has not challenged the district court’s holding that the claim

was procedurally barred from consideration by this Court. For claims that have

been rejected on procedural grounds, the petitioner must show that “jurists of

reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Because jurists of reason would have to

agree with the district court’s procedural ruling, we cannot reach the merits of

Bishop’s claim, and we decline to issue a COA for this claim. Bishop fails to

meet the second prong of the inquiry and thus we need not examine whether he

has stated a violation of a constitutional right regarding the aiding-and-abetting

jury instruction. 

D. Improper Waiver of Jury Sentencing

Bishop lastly argues that he was improperly allowed to waive his right to

sentencing by a jury, claiming that Mississippi state law prohibits such a waiver.

Bishop raised this claim on direct appeal to the Supreme Court of Mississippi,

which held thatthe waiver of jury sentencing in a capital case was allowed, even

though no statutory provision expressly provided for such a procedure. Bishop

v. State, 812 So. 2d 934, 945 (Miss. 2002) (en banc). The district court also

denied habeas relief for this claim, stating that Bishop 
No. 07-70035

7 The only time a federal court may review a state court’s interpretation of its statute

is when that interpretation is an “obvious subterfuge to evade consideration of a federal issue.”

Mullaney v. Wilbur, 421 U.S. 684, 691 n.11 (1975) (internal quotations omitted). 

14

was fully informed ofthe consequences of waiving a jury sentencing,

and it is equally clear that he was not deprived of any right to have

the jury decide the sentencing issue. He affirmatively chose not to

have a jury sentence him and may not now sustain his burden of

proof on federal habeas review by suggesting that he never had the

right to waive such sentencing. 

Bishop, 2007 WL 2363465, at *26. Relying on Blakely v. Washington, 542 U.S.

296, 310 (2004), where the Supreme Court held that “[e]ven a defendant who

stands trial may consent to judicial factfinding as to sentence enhancements,”

the district court subsequently found that reasonable jurists would not debate

the fact that Bishop had the right to waive jury sentencing and denied a COA.

Bishop v. Epps, No. 1:04-CV-319, 2007 WL 2727228, at *5 (N.D. Miss. Sept. 17,

2007). 

The Supreme Court has long held that state courts “have the final

authority to interpret and, where they see fit, to reinterpret that State’s

legislation.” Garner v. Louisiana, 368 U.S. 157, 169 (1961). Indeed, a

construction of a statute by a state’s highest court “puts these words in the

statute as definitely as if it had been so amended by the legislature.” Winters v.

New York, 333 U.S. 507, 514 (1948). We have held that “[s]tate courts are the

ultimate expositors of their own states’ laws, and federal courts entertaining

petitions for writs of habeas corpus are bound by the construction placed on a

States’s criminal statutes by the courts of that State except in extreme

circumstances.” Mendiola v. Estelle, 635 F.2d 487, 489 (5th Cir. 1981).7 Because

the Supreme Court of Mississippi’s interpretation of its death penalty statutes

does not fall into a limited exception for non-reviewability, we hold that Bishop’s

claim is not cognizable in habeas review and deny the issue of a COA.

IV. CONCLUSION
No. 07-70035

15

Bishop’s application for a COA is DENIED.