Pursuant to 5TH CIR. R. 47.5, the 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. 08-70035

ANTHONY BARTEE

Petitioner - Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent - Appellee

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 5:06-CV-263

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

In 1998, Anthony Bartee was sentenced to death in Texas for the murder

of David Cook, committed during a robbery. He seeks a Certificate of

Appealability (COA) from our court in order to be able to appeal from the district

court’s denial of federal habeas relief. Along that line, he requests a COA for

four issues. In addition, he seeks a remand for consideration of claimed newly

discovered evidence. DENIED. 

United States Court of Appeals

Fifth Circuit

F I L E D

July 31, 2009

Charles R. Fulbruge III

Clerk
No. 08-70035

2

I.

On 17 August 1996, the victim’s body was discovered by police and his

family in his home in San Antonio, Texas. He had been shot twice in the head

and stabbed in the shoulder. The bullet fragments at the scene were consistent

with having been fired from a pistol owned by the victim. This pistol, and the

victim’s red Harley Davidson motorcycle, were missing from his home. 

At some point that summer, Bartee had asked an acquaintance to assist

him in robbing and killing a neighbor, informing him this neighbor “had some

gold [credit] cards and a motorcycle” that Bartee wanted. And, two days prior

to the discovery of the victim’s body, Bartee had informed another acquaintance,

Munoz, that he intended to “ace some white dude out”. Bartee unsuccessfully

solicited both Munoz and several others to assist him in achieving this result.

That same day, at nearly midnight, Bartee arrived at Munoz’ home, riding a

Harley Davidson motorcycle and claiming to carry a gun. Several witnesses

identified this motorcycle as being similar or identical to the victim’s. 

In April 1997, Bartee was indicted for capital murder. In April 1998, on

the day the trial’s guilt phase was to begin, one of Bartee’s attorneys, Sawyer,

who had conducted the month-long voir dire of the jury, notified the court that

he had discovered that morning that he was acquainted with the victim’s family

and asked to withdraw as Bartee’s co-counsel. Sawyer informed the court he

was concerned “there might be a basic built-in conflict later on in trial” as a

result of this acquaintance. He was replaced, and the trial court delayed

resuming the trial for four weeks. 

In May 1998, the jury found Bartee guilty of capital murder. At the

punishment phase, two women testified to Bartee’s having sexually assaulted

them at knife-point in 1982 when they were teenagers. Bartee called as

witnesses his father and a public-school risk counselor. The jury found, inter

alia: (1) beyond a reasonable doubt, there was a probability Bartee “would
No. 08-70035

3

commit criminal acts of violence that would constitute a continuing threat to

society”; and (2) there were inadequate mitigating circumstances for Bartee to

be sentenced to life in prison, rather than death. A death sentence was imposed.

On direct appeal, Bartee raised 12 issues. The Texas Court of Criminal

Appeals, in May 2000, affirmed the conviction and sentence. Bartee did not seek

review by the Supreme Court of the United States. 

Bartee began a state habeas proceeding in January 2000, raising 37

issues. During an evidentiary hearing, Bartee called four witnesses: (1) his

father; (2) Bartee’s lead trial counsel; (3) the lead prosecutor from the trial; and

(4) a private investigator who helped interview potential witnesses for Bartee’s

defense at trial. In October 2005, the state habeas trial court entered findings

of fact and conclusions of law and recommended denial of relief. 

In March 2006, in a two-page order, the Texas Court of Criminal Appeals

adopted the state habeas trial court’s findings of fact and conclusions of law and

denied relief. 

In February 2007, Bartee filed his petition for federal habeas relief, raising

31 issues. That September, the State filed an answer and motion for summary

judgment. For the reasons stated in its 203-page opinion, the district court

denied relief in August 2008 and, in that opinion, sua sponte denied a COA for

any of Bartee’s claims. Bartee v. Quarterman, 574 F. Supp. 2d 624, 714 (W.D.

Tex. 2008). 

Bartee filed a notice of appeal in August 2008. The district court treated

it as an implicit request for a COA, which it denied that month. That November,

Bartee requested a COA from our court. 

II.

Bartee’s 28 U.S.C. § 2254 habeas application is subject to the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.

104-132, 110 Stat. 1214 (1996). E.g., Penry v. Johnson, 532 U.S. 782, 792 (2001).
No. 08-70035

4

Under AEDPA, Bartee may not appeal the denial of habeas relief unless he first

obtains a COA from either the district, or this, court. 28 U.S.C. § 2253(c); Miller

v. Dretke, 404 F.3d 908, 912 (5th Cir. 2005) (citations omitted). The district court

must first decide whether to grant a COA; only if it is denied by that court may

a COA on that issue be requested here. FED. R. APP. P. 22(b)(1). Having been

denied a COA by the district court, Bartee requests a COA here for each of the

four issues discussed infra.

To obtain a COA, Bartee must make “a substantial showing of the denial

of a constitutional right”. 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537

U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 483 (2000). To make such

a showing when the district court’s habeas denial is on the merits of an issue,

Bartee must demonstrate: “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” (reasonable-jurists standard). Miller-El, 537 U.S. at 336 (quoting Slack,

529 U.S. at 484). 

In deciding whether to grant a COA, we can make only a threshold inquiry

into the district court’s application of AEDPA to Bartee’s constitutional claims;

we may not consider the factual or legal merits in support of those claims.

Miller-El, 537 U.S. at 336. “When a court of appeals sidesteps this process by

first deciding the merits of an appeal, and then justifying its denial of a COA

based on its adjudication of the actual merits, it is in essence deciding an appeal

without jurisdiction.” Id. at 336-37.

For purposes of our threshold inquiry, we are cognizant that, under

AEDPA, the district court was required, with limited exceptions described below,

to defer to the state court’s resolution of Bartee’s claims. Those exceptions turn

on the character of the state-court’s ruling. Foster v. Quarterman, 466 F.3d 359,

365 (5 Cir. 2006). th
No. 08-70035

5

First, on questions of law, as well as mixed questions of law and fact, the

district court was required, under AEDPA, to defer to the state-court’s decision

unless it “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court”. 28 U.S.C.

§ 2254(d)(1); see Miller, 404 F.3d at 913. The state-court’s decision is considered

contrary to clearly established federal law if it “reaches a legal conclusion in

direct conflict with a prior decision of the Supreme Court or if it reaches a

different conclusion than the Supreme Court based on materially

indistinguishable facts”. Miller, 404 F.3d at 913 (quoting Miniel v. Cockrell, 339

F.3d 331, 337 (5th Cir. 2003)) (internal quotation marks omitted).

Second, under AEDPA, our threshold inquiry must recognize the district

court’s obligation to defer to the state-court’s factual findings, unless they

“resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding”. 28 U.S.C.

§ 2254(d)(2). Along that line, the district court was required to presume the

state-court’s factual findings were correct; in district court, Bartee had to rebut

that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Moreover, our threshold inquiry requires consideration of a COA request

against the backdrop of the elements of Bartee’s underlying constitutional

claims. See Miller, 404 F.3d at 913. Needless to say, meaningful review of the

district court’s ruling, for COA purposes, on whether Bartee made the requisite

28 U.S.C. § 2253(c)(2) “substantial showing of the denial of a constitutional

right” requires our considering these elements.

Initially, Bartee contends this matter should be remanded to district court

in the light of new evidence: genetic testing of blood and hair found at the

murder scene which, he claims, establishes his actual innocence. In the

alternative, he contends he is entitled to a COA for four claims: (1) the

prosecutor’s impermissible comment on Bartee’s failure to testify; (2) the
No. 08-70035

6

prosecution’s failure to disclose Brady material; (3) denial of counsel and conflict

of interest; and (4) ineffective assistance of counsel. For the reasons discussed

in greater detail, infra, remand is not required and the other four issues do not

satisfy the above-stated standards for a COA’s being granted. 

A.

For obvious reasons, Bartee’s procedural contention—that we should

remand this matter to district court because of the claimed new evidence (DNA)

“establishing his actual innocence”—will be considered before examining his

COA requests. See Thompson v. Quarterman, 292 F. App’x 277, 284-85 (5th Cir.

2008) (unpublished) (considering claimed procedural errors in federal habeas

proceeding prior to examining COA request). It is unclear whether Bartee

presents his claimed actual innocence as grounds for habeas relief, or whether

he asserts such innocence as part of his other claims for which he requests a

COA. We will assume the latter, its being well established, of course, that actual

innocence is not grounds for federal habeas relief from a state-court conviction.

See Herrera v. Collins, 506 U.S. 390, 400 (1993).

It appears Bartee advances his “actual innocence” claim as support for his

lesser-included-offense-instruction and ineffective-assistance-of-counsel claims.

Although not clearly articulated, the claimed exculpatory evidence would

presumably be used to demonstrate the requisite prejudice for an ineffectiveassistance claim. Bartee failed to present such a claim to the state habeas court;

but the district court could consider it because the State did not object. Because

such a claim was not considered by the state habeas court, the district court

reviewed it de novo. 

Bartee contended in district court that the jury should have been

permitted to consider the lesser included offenses of robbery or aggravated

robbery, on the factual theory that Bartee robbed the victim but did not kill him.

Bartee claims two gang members committed the murder. (Notably, Bartee has
No. 08-70035

7

not requested a COA from our court on his lesser-included-offense-instruction

claim.)

 The district court denied relief for this claim, according to Bartee,

primarily due to a lack of evidence to support his alternative theory of the

murder. Bartee urges our remanding this matter to district court for it to

consider his lesser-included-offense claims in the light of “this newly discovered

evidence”.

Bartee cites no authority in support of his proposition that this “newly

discovered evidence” compels remanding for new consideration of his lesserincluded-offense claims. Noting that actual innocence is not a grounds for

federal habeas relief, the State also contends Bartee’s evidence would not satisfy

this standard in any event. 

Assuming we can consider this new DNA evidence—a point the State does

not contest—it would not alter the district court’s analysis. The district court

did not reject Bartee’s lesser-included-offense claims because of an absence of

evidence from which a rational juror could have concluded others were present

that night. Instead, it concluded there was no evidence from which a rational

juror could have concluded someone other than Bartee had stabbed the victim’s

throat after he had been shot and killed. The court noted that Bartee had

identified “no evidence in the trial record establishing that either [of the gang

members he alleges to have murdered the victim] ever assaulted [the victim]

with a knife”. Bartee, 574 F. Supp. 2d at 679. Bartee does not challenge this

conclusion. 

Moreover, the district court concluded that, even if Bartee did not “fire the

fatal shots[,] . . . the evidence permits only one rational inference: acting with

the intent to rob [the victim], [Bartee] attempted to actively participate in the

fatal assault upon [the victim] by stabbing him before the fatal shots were fired

and then slashing his neck after the fatal shots were fired”. Id. at 680. Under
No. 08-70035

8

the Texas law of parties, the district court concluded, Bartee would be liable

even if another fired the fatal shot. Accordingly, the DNA evidence to which

Bartee refers proves at most that someone other than Bartee was present, a fact

not inconsistent with the “one rational inference” the evidence permitted. 

Along this line, the 3 September 2008 Serology/DNA Report which Bartee

appended to his brief here notes that it did not compare the hair or blood to that

of the victim because no sample had been submitted. It is, therefore, entirely

possible this DNA evidence proves nothing at all. 

Assuming the DNA evidence proves anything, it does not alter the district

court’s analysis that there was no evidence in the record to support a rational

juror’s concluding someone other than Bartee used a knife on the victim. Bartee

has not challenged the district court’s characterization of the record, nor, as

noted, has he sought a COA regarding the lesser-included-offense-instruction

issue. Accordingly, his remand request is without merit. 

B.

As noted, Bartee requests a COA for each of the following four claims: (1)

the prosecutor commented on Bartee’s failure to testify; (2) a Brady violation; (3)

denial of counsel and conflict of interest; and (4) ineffective assistance of counsel.

Again, none satisfies the standard for a COA’s being granted. 

1.

Bartee contends the prosecutor, in closing argument, commented on

Bartee’s failure to testify at trial, in violation of the Fifth Amendment. During

closing argument at the punishment phase, the prosecutor, in referring to one

of Bartee’s character witnesses who had described Bartee as “a model prisoner”,

asked: “Is a model prisoner somebody who doesn’t admit they have committed

a crime?” The trial court overruled Bartee’s objection to this comment,

construing it merely as a reference to Bartee’s continued assertions of his

innocence of the two sexual assaults of which he previously had been convicted.
No. 08-70035

9

The prosecutor subsequently commented on Bartee’s failure to “own up to one

bit . . . of responsibility”. The trial court sustained Bartee’s objection to this

comment and instructed the jury to disregard it, but denied his motion for a

mistrial. 

Bartee contested these rulings in his direct appeal. Regarding the first

comment, the Texas Court of Criminal Appeals concluded that, in context, the

comment did not refer to Bartee’s failure to testify and, instead, clearly referred

to his statements to one of his character witnesses that he was not guilty of the

sexual assaults for which he previously had been convicted. The Texas Court of

Criminal Appeals acknowledged that the second comment was ambiguous

enough that it could have been viewed as a comment on Bartee’s failure to

testify. It concluded, however, that the trial court’s instruction to disregard the

comment was enough to cure any possible error. 

Bartee also raised these claims in his state habeas proceeding, but the

state habeas court held the prior consideration of this claim on direct appeal

precluded their review in the state habeas proceeding. It held, in the

alternative, that if the claims differed from those raised on direct appeal, they

could have been raised then and were not appropriate bases for habeas relief. 

In denying federal habeas relief on this issue, the district court concluded

that none of the comments could have been construed as referring to Bartee’s

failure to testify. The district court also concluded that, even if there were

ambiguity regarding the second comment, the trial court’s instructing the jury

to disregard it “eliminated any threat of prejudice to petitioner”. Lastly, it

concluded that any error arising from the closing argument would be harmless.

Accordingly, the district court concluded that, under AEDPA, the state-court

rejection of this claim “was neither contrary to, nor involved an unreasonable

application of, clearly established Federal Law”. 
No. 08-70035

10

Bartee contends that the district court and Texas Court of Criminal

Appeals came to different conclusions regarding the meaning of the prosecutor’s

comments, the Texas court finding the second comment ambiguous but the

district court finding it not a reference to the failure to testify. Bartee contends

the district court thereby improperly made findings of fact when AEDPA

compelled it to defer to those by the state court. Accordingly, Bartee asserts a

COA should be granted on this issue because, in view of the district court’s and

the Texas Court of Criminal Appeals’ having reached different conclusions

regarding the meaning of the second comment, reasonable jurists already have

disagreed on this issue. 

Bartee’s contentions fail for at least two reasons. First, he misreads the

district court’s opinion. The district court does not simply conclude the second

comment was merely a reference to Bartee’s continued declarations of innocence

regarding the sexual assaults. (Of course, the district court did not engage in de

novo review of these claims; its analysis of Bartee’s claims was only to determine

whether, under AEDPA, the state-court decision involved an unreasonable

application of clearly established law.) Instead, the district court was applying

the framework of Cotton v. Cockrell, 343 F.3d 746, 751 (5th Cir. 2003) (quoting

Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir. 1999)), which holds a comment

does not violate the Fifth Amendment unless “the prosecutor’s manifest intent

in making the remark must have been to comment on the defendant’s silence,

or the character of the remark must have been such that the jury would

naturally and necessarily construe it as a comment on the defendant’s silence”.

The district court merely noted that these comments, in context, neither

“manifested a prosecutorial intent to comment on petitioner’s failure to testify

at trial, [nor] were of such a character as to necessarily have been construed by

the jury as a comment on petitioner’s failure to testify”. Bartee, 574 F. Supp. 2d

at 684. Accordingly, the district court was not making a finding of fact, but was,
No. 08-70035

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instead, applying our precedent to the facts of this case to determine the

reasonableness, under AEDPA, of the state-court resolution of the issue.

Secondly, this is only one of three alternative reasons given by the district

court in support of its conclusion that, under AEDPA, the state-court resolution

of this claim was not unreasonable. The district court also noted that, even if

there were ambiguity, it had been cured by the trial court’s instruction to the

jury to disregard the comments. Finally, it noted that these comments, even if

impermissible, were harmless. The district court did not, as Bartee now

contends, “determin[e] independently that the prosecutor’s remark was not what

the trial court had found it to be”. 

Notably, Bartee makes no attempt to demonstrate, under AEDPA, how the

state-court conclusion there was no violation of Bartee’s Fifth Amendment right

was an unreasonable application of clearly established law. In sum, he fails to

demonstrate that jurists of reason could debate the district court’s resolution of

this claim. 

2.

Bartee contends a COA should be granted regarding the prosecution’s

alleged failure to disclose materials it was required to disclose under Brady v.

Maryland, 373 U.S. 83 (1963). He bases the claimed Brady violation on the

assertion that, “[w]ithin a few months after the trial”, two of the State’s

witnesses received “very favorable deals on their cases”. 

Bartee pursued this Brady claim before the state habeas court. That court

rejected it, finding: “Bartee presented no evidence to establish the existence of

any ‘deals’ between the prosecution and witnesses”. 

The district court concluded that, under AEDPA, the state habeas court’s

resolution of this claim was reasonable because, inter alia, under Knox v.

Johnson, 224 F.3d 470, 482 (5th Cir. 2000) (quoting Goodwin v. Johnson, 132
No. 08-70035

12

F.3d 162, 187 (5th Cir. 1998)), “a nebulous expectation of help from the state

. . . is not Brady material”. 

In support of his Brady claim, Bartee offered evidence in district court that

had not been presented to the state habeas court. Although the district court

concluded this evidence would not have altered its analysis of the claim, it

concluded that, because this evidence had not been presented to the state habeas

court, it could not consider it. 

Assuming arguendo we can consider Bartee’s new evidence, he

nevertheless fails to establish his entitlement to a COA on this issue. This

evidence establishes only that two of the State’s witnesses received favorable

dispositions in their own criminal proceedings, subsequent to their testimony in

Bartee’s trial. He has presented no evidence of an agreement between the State

and the witnesses. Accordingly, at most, he has established these witnesses had

the earlier-described “nebulous expectation of help from the state”. Bartee has

not, therefore, established that jurists of reason would debate the district court’s

resolution of his Brady claim. 

3.

Bartee contends he was denied counsel because Sawyer, one of Bartee’s

attorneys, withdrew after discovering he knew the victim’s family, and after he

had represented him during the investigation for trial and jury selection.

Michael Sawyer began serving as counsel on or about 1 March 1998. Voir dire

began on 9 March 1998, and a jury was selected by 8 April. On 13 April, the day

the trial’s guilt phase was to begin, Sawyer informed the trial court that he was

acquainted with the victim’s family and asked to withdraw as counsel, citing the

potential conflict. 

According to Bartee, Sawyer’s primary responsibility was jury selection.

Bartee contends that one of two things must be true: either Sawyer had

performed so little investigation that he did not realize he knew the victim’s
No. 08-70035

13

family, or he knew of the conflict and neglected to inform the court or Bartee of

it. In either event, Bartee contends, he was deprived of his Sixth Amendment

right to counsel. 

The state habeas court rejected Bartee’s claim, finding both that Bartee

did not “produce any substantive evidence establishing” a conflict of interest and

that Bartee had failed to show the conflict had an adverse impact on Sawyer’s

performance. The state habeas court also found it relevant that Sawyer was

never Bartee’s sole counsel. “[A]t all relevant times Bartee was represented by

another competent attorney who provided effective representation”. 

In denying federal habeas relief for this claim, the district court found: the

state habeas court’s concluding the actual conflict of interest standard of Cuyler

v. Sullivan, 446 U.S. 335, 348 (1980), did not apply to Bartee was not

unreasonable, under AEDPA, because Bartee could show neither an actual

conflict nor any adverse effect on his representation. 

The district court reached the same conclusion, under AEDPA, regarding

Bartee’s claim to a presumption of prejudice under United States v. Cronic, 466

U.S. 648 (1984). Because he was represented throughout voir dire by his lead

counsel as well as by Sawyer, the district court concluded that, even if Sawyer’s

investigation was inadequate, it would not have risen to the level of being a total

failure “to subject the prosecution’s case to meaningful adversarial testing”.

Lastly, the district court found Bartee had “presented the state habeas court

with no evidence showing . . . Sawyer’s relationship with the [victim’s] family

. . . had any effects . . . analogous to the extreme situations in which the

Supreme Court” has presumed prejudice under Cronic. Bartee, 574 F. Supp. 2d

at 645. 

Accordingly, under AEDPA, the district court concluded the state habeas

court’s rejection of these claims “was neither contrary to, nor involved an

unreasonable application of, clearly established Federal law, . . . nor an
No. 08-70035

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unreasonable determination of the facts in light of the evidence presented in

[Bartee’s] state habeas corpus proceeding”. Id. 

a.

Bartee seeks a COA in order to appeal a conflict-of-interest claim under

Cuyler. There, the Court addressed “whether the mere possibility of a conflict

of interest warrants the conclusion that the defendant was deprived of his right

to counsel”. Cuyler, 446 U.S. at 345. Unlike ineffective-assistance-of-counsel

claims, governed by Strickland’s prejudice requirements, under Cuyler,

“prejudice is presumed if the defendant shows that an actual conflict of interest

adversely affected his lawyer’s performance”. Beets v. Scott, 65 F.3d 1258, 1265

(5th Cir. 1995) (en banc) (citing Cuyler, 446 U.S. at 348).

As our court noted in Beets, 65 F.3d at 1265, “[t]he Supreme Court has not

expanded Cuyler’s presumed prejudice standard beyond cases involving multiple

representation”. There is nothing in the record suggesting Sawyer ever

represented the victim’s family, only that he knew them socially. Furthermore,

even when Cuyler might be applicable, “[p]rejudice is presumed only if the

defendant demonstrates that counsel ‘actively represented conflicting interests’

and that ‘an actual conflict of interest adversely affected his lawyer’s

performance’”. Strickland v. Washington, 466 U.S. 668, 692 (1984) (quoting

Cuyler, 446 U.S. at 350). Bartee has neither established that Sawyer’s

acquaintance with the victim’s family constituted an actual conflict of interest,

nor that Sawyer’s claimed conflict adversely affected his performance. 

In short, Cuyler is simply inapplicable to Bartee’s Sixth Amendment

claims. See also Kirkpatrick v. Butler, 870 F.2d 276, 284 (5th Cir. 1989)

(Statement On Petition for Rehearing and Suggestion for Rehearing En Banc)

(“[F]riendship with and past representation of members of a victim’s family does

not preclude an attorney from representing the defendant when, as here, the

attorney revealed his relationship to the defendant and the court”). Accordingly,
No. 08-70035

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reasonable jurists could not debate the district court’s conclusion that, under

AEDPA, the state habeas court’s rejection of Bartee’s Cuyler claim was not

unreasonable.

b.

In Cronic, the Court considered which “circumstances . . . are so likely to

prejudice the accused that” a petitioner need not prove actual prejudice when

advancing an ineffective-assistance-of-counsel claim. 466 U.S. at 658. The

Court recognized three exceptions to the normal rule that a petitioner advancing

an ineffective-assistance-of-counsel claim must prove actual prejudice in addition

to deficient performance. See Bell v. Cone, 535 U.S. 685, 695-96 (2002)

(summarizing the three situations from Cronic). Under Cronic, prejudice can be

presumed: (1) if the petitioner “is denied the presence of counsel at a critical

stage”, id. at 695 (internal quotation marks and citations omitted); (2) if

“counsel entirely fails to subject the prosecution’s case to meaningful adversarial

testing”, Cronic, 466 U.S. at 659; and (3) “where counsel is called upon to render

assistance under circumstances where competent counsel very likely could not”,

Bell, 535 F.3d at 696. As discussed below, because none of the Cronic exceptions

applies, Bartee has not demonstrated that jurists of reason could disagree with

the district court’s conclusion that, under AEDPA, the state court’s rejection of

Bartee’s Cronic claim was not an unreasonable application of clearly established

law. 

Regarding the first exception, as the district court noted, Bartee was

represented throughout his trial by his lead counsel. Accordingly, even if

Sawyer were somehow constructively absent, Bartee cannot say he was without

counsel at a critical stage. 

Regarding the second exception, Bartee does not even appear to contend

that Sawyer failed to subject the prosecution’s case to meaningful adversarial

testing. 
No. 08-70035

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Finally, he does not suggest how this case is similar to those in which the

third exception has been found to apply. 

The cases Bartee cites do not make debatable the district court’s

conclusion regarding his Cronic claim. Burdine v. Johnson, 262 F.3d 336, 338

(5th Cir. 2001) (en banc), found the first Cronic exception to apply when

petitioner’s counsel had slept during portions of the trial during which evidence

against defendant was admitted. There is no assertion here that Sawyer was

absent or asleep during some stage of the proceedings. Bartee’s claim is that

Sawyer did his job poorly, not that he failed to do it at all. 

Bartee cites Satterwhite v. Texas, 486 U.S. 249, 256 (1988), for the

proposition that “[s]ome constitutional violations . . . by their very nature cast

so much doubt on the fairness of the trial process that, as a matter of law, they

can never be considered harmless”. Bartee contends: because Sawyer “was so

unfamiliar with the facts of the case that he didn’t even realize that he knew the

victim and his family, this Court can have no confidence in the fairness of the

entire trial”. Satterwhite, however, is entirely irrelevant. The state habeas

court did not employ harmless-error analysis in rejecting Bartee’s Cronic claim,

nor did the district court in determining, under AEDPA, that the state habeas

court’s decision was not unreasonable. Accordingly, Satterwhite has no effect on

Bartee’s Cronic claim. 

Bartee cites Williams v. Taylor, 529 U.S. 362 (2000), but Williams involved

an application of Strickland, not Cronic. Williams, similarly, has no bearing on

Bartee’s Cronic claims.

Finally, Bartee contends prejudice should be evaluated under the

“standard of harm . . . applied when an attorney labored under a conflict of

interest”. Bartee cites Perillo v. Johnson, 79 F.3d 441, 448 (5 Cir. 1996), in th

support of this claim. Perillo, however, dealt with the Cuyler prejudice standard.
No. 08-70035

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As noted, supra, jurists of reason would not debate the applicability vel non of

Cuyler. Accordingly, this contention is similarly meritless. 

In sum, Bartee has not established that jurists of reason would find the

district court’s resolution of his Cronic or Cuyler claims debatable. 

4.

Bartee also seeks a COA to appeal the district court’s denial of his

Strickland claim for ineffective assistance of counsel. He maintains counsel was

ineffective at his trial’s guilt and punishment phases. In his state habeas

proceeding, Bartee called four witnesses: (1) his father; (2) Callahan, Bartee’s

lead trial counsel; (3) the lead prosecutor from trial; and (4) a private

investigator who assisted Bartee’s attorneys at trial. He did not call Callahan’s

co-counsel from trial, nor did he ask Callahan about “the subjective thought

processes and strategic reasoning underlying [his] decision-making . . .

particularly with regard to counsel’s decisions not to investigate potentially

advantageous factual matters more thoroughly”. Bartee, 574 F. Supp. 2d at 634.

He similarly “introduced no testimony from any witness suggesting that any

additional, admissible, exculpatory, mitigating, or favorable impeachment

evidence existed at the time of . . . trial which could have been discovered . . .

through more thorough investigation”. Id. 

The state habeas court considered, and rejected, Bartee’s Strickland claim,

concluding Bartee had failed to produce any evidence establishing: (1) what

additional evidence would have been discovered had his counsel performed

additional investigation; (2) “that defense counsel failed to work as a team”; (3)

what uncalled expert witnesses were available and would have been helpful to

the defense; (4) his counsel was using, or impaired by the use of, alcohol during

the trial; (5) the reasons for his attorney’s failure to move to exclude witnesses

from the courtroom or that any witnesses were actually present during the trial;
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and (6) the existence and availability of exculpatory or mitigating evidence not

presented at trial. 

In addition, the state habeas court rejected Bartee’s claim that his counsel

was deficient for failing to request a limiting instruction during the punishment

phase, holding Bartee was not entitled to the instruction. It also rejected

Bartee’s claim that his counsel was deficient for failing to object to portions of

the State’s closing argument during the guilt phase and to evidence of the

victim’s good character, finding that, in the absence of evidence explaining

counsel’s failure to object, the record was insufficient “to overcome the strong

presumption that counsel’s performance was reasonable”. Ex Parte Bartee, No.

97-CR-1659-W1, slip op. at 11 (Tex. Dist. 17 October 2005) (unpublished). It also

rejected Bartee’s claim that trial counsel was deficient for failing to make an

opening statement during the penalty phase, noting that his counsel had

requested, but the trial court prohibited, making the statement. Finally, the

state habeas court rejected Bartee’s claim that the “totality of the representation

demonstrates that counsel was ineffective”, noting the experience of his lead

counsel and Bartee’s own inconsistent statements about what happened on the

night of the murder. Id. at 12.

The district court denied federal habeas relief on Bartee’s Strickland

claim, concluding, under AEDPA, that the state habeas court’s resolution of

Bartee’s claim was not unreasonable. It found the “problem with petitioner’s

complaints of ineffective assistance in this cause [to be] the fact petitioner failed

to present the state habeas court with any evidence, other than that contained

in the petitioner’s trial and appellate records” regarding Bartee’s “counsels’

strategic and tactical decision-making”. Bartee, 574 F. Supp. 2d at 649. The

district court concluded: “Absent some showing a counsel’s subjective decisionmaking was objectively unreasonable, . . . it is almost impossible for a habeas

corpus petitioner to overcome the presumption of reasonableness afforded his
No. 08-70035

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counsel’s strategic and tactical decisions under Strickland”. Id. Ultimately, the

district court concluded Bartee had “failed to carry his burden of proving the

actions of his trial counsel . . . fell outside the wide range of objectively

reasonable professional conduct . . . . [or to prove] he was ‘prejudiced’ within the

meaning of Strickland”. Id. at 652. As a result, it concluded that, under

AEDPA, the state habeas court’s rejection of Bartee’s Strickland claim was not

an unreasonable application of clearly established law. 

Bartee urges us to grant a COA on this issue because the district court

faulted him for not presenting evidence which, according to Bartee, “would have

been rejected as not fairly presented” if it had been offered. To the extent he

contends the district court faulted him for not presenting evidence he could not

have offered, he misapprehends the district court’s opinion. The district court

did not reject Bartee’s Strickland claim because he failed to advance an

impermissible claim of ineffective assistance by his state-court habeas counsel,

as Bartee seems to suggest. Although the district court did note Bartee’s not

having explained his state-court habeas counsel’s failure to offer evidence

establishing a Strickland claim, it did not suggest this lack of an explanation

informed its denial of relief. On the contrary, as quoted infra, it concluded

Bartee had failed to carry his burden of proof regarding either prong of

Strickland (deficient performance and prejudice) such that the state habeas

court’s rejection of his Strickland claim was not unreasonable. The failure to

explain these defects did not motivate the denial of federal habeas relief; the

defects themselves did.

Rather than explain how jurists of reason would find the district court’s

conclusion debatable, Bartee repeats, essentially verbatim, the factual

contentions made to the district court in support of his Strickland claim. He

still fails to explain how any of the claimed deficiencies fell outside the range of

objectively reasonable professional conduct. We need not determine whether
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Bartee has established his entitlement to a COA based on these deficiencies,

however, because he makes no meaningful attempt to explain how he was

prejudiced by them. In the absence of some evidence of what prejudice Bartee

suffered from the claimed errors, reasonable minds could not disagree about the

district court’s rejection of relief on Bartee’s Strickland claim. 

III.

For the foregoing reasons, Bartee’s requests for a remand and COA are

DENIED.