IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-70018

EDWIN HART TURNER,

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. 4:07-CV-77

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:

*

Edwin Hart Turner (“Petitioner”) seeks a Certificate of Appealability

(“COA”) on his claim that he received ineffective assistance of counsel during the

mitigation phase of his capital case. In the alternative, Petitioner requests that

we remand to the district court for an evidentiary hearing on his claim. After

review, we find that Petitioner has not made a substantial showing of the denial

of a constitutional right and, therefore, we deny his COA on this ground.

United States Court of Appeals

Fifth Circuit

F I L E D

February 17, 2011

Lyle W. Cayce

Clerk

 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.

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Petitioner is also not entitled to a COA on his claim that the district court

abused its discretion in choosing not to hold an evidentiary hearing.

I. Facts and Procedural History

On December 12, 1995, Petitioner and another individual, Paul Stewart,

were drinking beer and smoking marijuana while driving around in Stewart’s

car. Eventually, Petitioner and Stewart decided to rob convenience stores in

Carroll County, Mississippi. They first drove to Mims Truck Stop, but left after

finding it too crowded. They then drove to Mims Turkey Village Truck Stop,

about four miles away. At around 2:00 a.m. on December 13th, the two entered

the store wearing masks and carrying rifles. Petitioner shot the store clerk in

the chest. Petitioner and Stewart then tried to open the cash register, and at

one point, both men shot at the register. After their unsuccessful attempts to

open the register, Petitioner placed the barrel of his rifle inches from the store

clerk’s head and shot him.

Petitioner and Stewart then drove back to Mims Truck Stop. While

Stewart went inside the store, Petitioner approached Everett Curry, who was

pumping gas outside. Petitioner ordered Curry to the ground, robbed him, and

shot him in the head. Meanwhile, inside the store, Stewart grabbed some of the

store’s cash. Petitioner then came into the store and pointed his gun at the

people inside. Stewart testified at trial that he told Petitioner there was no need

to kill anyone else because Stewart already had the money from the cash

register. The pair left the store and returned to Petitioner’s home. The next

morning, police officers arrived at Petitioner’s home and found the two guns used

in the crimes inside. They also found the hockey mask Stewart used during the

robberies in the backseat of Petitioner’s car.

After the two were arrested, Stewart gave a full confession and pleaded

guilty to two counts of capital murder. As part of his plea, Stewart agreed to

testify against Petitioner. The jury ultimately found Petitioner guilty of two

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counts of capital murder while engaged in an armed robbery and imposed the

death penalty. The convictions and death sentence were affirmed on direct

appeal. Turner v. State, 732 So. 2d 937 (Miss. 1999), cert. denied, Turner v.

Mississippi, 528 U.S. 969 (1999).

Petitioner then filed for post-conviction relief in Mississippi state court.

In support of his habeas petition, Petitioner submitted numerous affidavits from

family members, as well as an affidavit from Petitioner’s girlfriend at the time

of the crimes. Petitioner claimed that these affidavits showed his trial counsel’s

lack of sufficient investigation and presentation of mitigation evidence during

the sentencing phase of the trial. Petitioner also provided the state court with

an affidavit from a doctor offering a different assessment of Petitioner’s mental

illnesses from that offered by the expert witness called by the defense during the

mitigation phase. The Mississippi Supreme Court denied the habeas petition,

finding that: Petitioner had not shown a deficiency in counsel’s pre-trial

investigation or performance; the information provided in the affidavits was

cumulative of testimony given at trial; and counsel’s decision not to call

additional mitigation witnesses was a strategic choice within counsel’s range of

discretion. Turner v. State, 953 So. 2d 1063 (Miss. 2007).

Petitioner subsequently filed for habeas relief in federal district court on

numerous grounds. The district court denied the petition, finding that Petitioner

did not rebut the Mississippi Supreme Court’s factual findings by clear and

convincing evidence and Petitioner had not shown that the Mississippi Supreme

Court’s application of the Strickland standard was unreasonable. In the same

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memorandum opinion and order, the district court also denied Petitioner’s

request for an evidentiary hearing and his request for a COA. After the district

court denied Petitioner’s motion to alter or amend judgment, Petitioner timely

The Strickland standard governs ineffective assistance of counsel claims. Strickland 1

v. Washington, 466 U.S. 668, 686-87 (1984).

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appealed to this court, seeking a COA on his claim of ineffective assistance of

counsel. In the alternative, Petitioner seeks a remand for an evidentiary

hearing.

II. Standard of Review

A. COA and AEDPA Requirements

The habeas petition in this case is governed by the Antiterrorism and

Effective Death Penalty Act (“AEDPA”). Under AEDPA, a petitioner must

obtain a COA before he can appeal a district court’s denial of requested habeas

relief. 28 U.S.C. § 2253(c)(1); Slack v. McDaniel, 529 U.S. 473, 478 (2000). A

COA will not issue unless the petitioner makes a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Such a showing is made

if a petitioner demonstrates 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 proceed further.”

Shisinday v. Quarterman, 511 F.3d 514, 520 (5th Cir. 2007) (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 n.4 (1983) (internal citation and quotations omitted)).

A claim can be debatable even though every jurist of reason might agree, after

the COA has been granted and the case has received full consideration, that the

petitioner will not prevail. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003).

When determining whether to grant a COA, we do not fully consider the

underlying factual and legal bases in support of the petitioner’s claim. Miller-El,

537 U.S. at 336; Sonnier v. Quarterman, 476 F.3d 349, 355-56 (5th Cir. 2007).

Rather, we conduct only a limited, threshold inquiry into the underlying merits.

Sonnier, 476 F.3d at 356. In capital cases, we resolve doubts over whether a

COA should issue in the petitioner’s favor. Id.

In determining whether reasonable jurists would debate the district

court’s assessment of Petitioner’s claims, we keep in mind that the district court

must make its decision pursuant to AEDPA’s deferential standards. Reed v.

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Quarterman, 504 F.3d 465, 471 (5th Cir. 2007). AEDPA dictates that a court

cannot grant habeas relief on any claim adjudicated on the merits by a state

court unless the petitioner meets the requirements of 28 U.S.C. § 2254(d). The

petitioner can obtain relief if he demonstrates that the state court’s adjudication

“resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States . . . .” 28 U.S.C. § 2254(d)(1).

Under the “unreasonable application” clause, a federal court may grant

relief if the state court identified the correct legal principle, but unreasonably

applied that principle to the facts of the petitioner’s case. Wiggins v. Smith, 539

U.S. 510, 520 (2003). “The question under AEDPA is not whether a federal court

believes the state court’s determination was incorrect but whether that

determination was unreasonable—a substantially higher threshold.” Schriro v.

Landrigan, 550 U.S. 465, 473 (2007). Relief may be granted under the “contrary

to” clause when the state court: (1) arrives at a conclusion opposite that reached

by the Supreme Court on a question of law; or (2) decides a case differently than

the Supreme Court on a set of materially indistinguishable facts. Williams v.

Taylor, 529 U.S. 362, 412-13 (2000). In reviewing a state court’s decision, this

court focuses on “the ultimate legal conclusion that the state court reached and

not on whether the state court considered and discussed every angle of the

evidence.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc) (per

curiam).

Alternatively, a petitioner may obtain habeas relief under § 2254(d)(2)

when the state court’s decision was “based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.”

Williams, 529 U.S. at 386. A state court’s factual determination is “not

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unreasonable merely because the federal court would have reached a different

conclusion in the first instance.” Wood v. Allen, 130 S. Ct. 841, 849 (2010).

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B. Strickland/Wiggins Standard

Petitioner does not contend that he is innocent of the two victims’ murders

or the commission of the accompanying robberies. Instead, he focuses his claims

for habeas relief on the sentencing phase. The familiar Strickland standard,

applied to capital sentencing in Wiggins, governs Petitioner’s claim that his

constitutional rights were violated due to the ineffective assistance of counsel.

U.S. CONST. amend. VI; Wiggins, 539 U.S. at 521 (citing Strickland, 466 U.S. at

686-87 as establishing the legal principles that govern claims of ineffective

assistance of counsel). To show denial of effective counsel, a petitioner must

establish both that: (1) counsel’s performance fell below an objective standard of

reasonableness in light of the prevailing professional norms; and (2) but for

counsel’s deficient performance, a reasonable probability exists that the result

of the proceeding would have been different. Virgil v. Dretke, 446 F.3d 598, 608

(5th Cir. 2006) (citing Strickland, 466 U.S. at 687). A claim of ineffective

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assistance of counsel presents a mixed question of law and fact. Richards v.

Quarterman, 566 F.3d 553, 561 (5th Cir. 2009). We review a district court’s

findings of fact for clear error and its legal conclusions de novo. Woodfox v. Cain,

609 F.3d 774, 789 (5th Cir. 2010).

We do not make any pronouncements as to whether the more deferential standard

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prescribed in § 2254(e)(1) applies in every case presenting a challenge under § 2254(d)(2). The

Supreme Court has left open the question of the relationship between those two provisions. 

See Wood, 130 S. Ct. at 849 (noting circuit split on this issue, but finding it unnecessary to

address because the state court’s finding that counsel made a strategic decision was not an

unreasonable determination of the facts under § 2254(d)(2)). We do not believe that the state

court’s findings were an unreasonable determination of the facts under § 2254(d)(2) and,

therefore, we do not need to consider the more deferential standard.

The rule set forth in Strickland is “clearly established Federal law, as determined by 3

the Supreme Court of the United States.” Williams, 529 U.S. at 391.

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1. Counsel’s Performance

When reviewing counsel’s performance, a court should make every effort

to “eliminate the distorting effects of hindsight” and “evaluate the conduct from

counsel’s perspective at the time.” Strickland, 466 U.S. at 689. Judicial scrutiny

of counsel’s performance is highly deferential, and there is a “strong

presumption that counsel performed adequately and exercised reasonable

professional judgment.” Virgil, 446 F.3d at 608 (internal citation omitted).

“[S]trategic choices made after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable; and strategic choices made

after less than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation.”

Wiggins, 539 U.S. at 521-22 (quoting Strickland, 466 U.S. at 690-91). However,

courts are “not required to condone unreasonable decisions parading under the

umbrella of strategy, or to fabricate tactical decisions on behalf of counsel when

it appears on the face of the record that counsel made no strategic decision at

all.” Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999). If counsel did not

make an informed decision, the court must reject an assertion of strategy.

Lockett v. Anderson, 230 F.3d 695, 715 (5th Cir. 2000).

To render performance that is constitutionally sufficient, counsel should

pursue all reasonable leads. Wiggins, 539 U.S. at 524. In evaluating counsel,

a court must consider not only the quantum of evidence already known to

counsel, but also whether the known evidence would lead a reasonable attorney

to investigate further. Id. at 527. However, “the duty to investigate does not

force defense lawyers to scour the globe on the off chance something will turn up;

reasonably diligent counsel may draw a line when they have good reason to

think further investigation would be a waste.” Rompilla v. Beard, 545 U.S. 374,

383 (2005). “Questioning a few more family members and searching for old

records can promise less than looking for a needle in a haystack, when a lawyer

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truly has reason to doubt there is any needle there.” Id. at 389. Additionally,

“[c]ounsel should be permitted to rely upon the objectively reasonable

evaluations and opinions of expert witnesses without worrying that a reviewing

court will substitute its own judgment . . . and rule that his performance was

substandard for doing so.” Smith v. Cockrell, 311 F.3d 661, 676-77 (5th Cir.

2002), overruled in part on other grounds, Tennard v. Dretke, 542 U.S. 274

(2004); Wilson v. Sirmons, 536 F.3d 1064, 1089 (10th Cir. 2008) (noting that, to

a degree, counsel should be able to rely on an expert to determine what evidence

is necessary to an effective evaluation, and what additional evidence the expert

needs to complete testing).

2. Prejudice

The prejudice prong of the Strickland/Wiggins standard asks “whether

counsel’s deficient performance renders the result of the trial unreliable or the

proceeding fundamentally unfair.” Williams, 529 U.S. at 393 n.17.

“Unreliability or unfairness does not result if the ineffectiveness of counsel does

not deprive the defendant of any substantive or procedural right to which the

law entitles him.” Id. If the state court did not reach the prejudice prong, a

federal court reviews that prong de novo. Wiggins, 539 U.S. at 534. “If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

The petitioner carries the burden of showing prejudice. Sonnier, 476 F.3d

at 358. Such a showing is made if “there is a reasonable probability that at least

one juror would have struck a different balance.” Wiggins, 539 U.S. at 537;

Lockett, 230 F.3d at 715 (discussing the requirement of unanimity among all

jurors to impose the death penalty under Mississippi law and stating that if “a

juror could have reasonably concluded that the death penalty was not an

appropriate penalty in this case based on the mitigating evidence, prejudice will

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have been established”). A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Strickland, 466 U.S. at 694.

A federal appellate court assessing prejudice during the sentencing phase

of a capital proceeding must re-weigh the totality of the available mitigation

evidence—both that adduced at trial and the evidence adduced in the habeas

proceeding—against aggravation evidence. Williams, 529 U.S. at 397; Wiggins,

539 U.S. at 534. To establish prejudice, the new evidence must be so compelling

as to create a reasonable probability that a juror could have reasonably assessed

Petitioner’s moral culpability differently. Neal, 286 F.3d at 241.

III. Discussion

Keeping the appropriate standards in mind, we must determine whether

reasonable jurists could debate the propriety of the district court’s resolution of

Petitioner’s claim for habeas relief. We address each argument raised by the

Petitioner in turn.

A. Ineffective Assistance of Counsel

1. Reasonableness of the State Court’s Factual Findings

Petitioner has not shown that the reasonableness of the state court’s

findings of fact is debatable. The state court was not unreasonable in finding

that almost all of the background factual information contained in the affidavits

attached to the habeas petition tracked the testimony of the three defense

witnesses during the sentencing phase. Those three witnesses testified to

Petitioner’s tragic upbringing, the alcohol abuse by Petitioner’s parents,

Petitioner’s involuntary commitments to mental institutions, and Petitioner’s

two attempted suicides. While some of the new affidavits may have provided

more details or a slightly different perspective, we cannot find that this renders

unreasonable the state court’s factual determination that such testimony was

cumulative.

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Further, we do not find that reasonable jurists could debate whether the

state court was unreasonable in finding that counsel interviewed “numerous” or

“many” witnesses during the course of the pre-trial investigation. The affidavits

provide that counsel interviewed at least five witnesses prior to the sentencing

phase, and we will not discredit a state court’s finding simply because Petitioner

objects to the use of the term “many.” We also note that the state court further

supported its holding as to the sufficiency of the pre-trial investigation with an

unchallenged finding that counsel reviewed Petitioner’s extensive medical and

psychiatric files.

2. State Court Application of the Strickland/Wiggins Standard

Turning to the state court’s application of the Strickland/Wiggins

standard, we ultimately find that reasonable jurists could not debate whether

the state court unreasonably applied Strickland/Wiggins when it held that

counsel’s pre-trial investigation was sufficient. The record demonstrates that

counsel interviewed several witnesses and reviewed Petitioner’s medical and

psychiatric files. Further, counsel hired two different experts to evaluate

Petitioner before trial. Although counsel utilized one of those experts at trial

(Dr. Galvez), Petitioner urges that counsel should have interviewed more

witnesses and conducted an investigation into the effects of Prozac on

Petitioner’s mental state at the time of the crimes. Petitioner claims that

additional investigation would have led counsel to uncover evidence of

Petitioner’s increasingly strange behavior just before the crimes, as well as a

family history of mental illness. Such information, Petitioner avers, was not

provided to the defense’s testifying expert and, had it been, that expert would

likely have diagnosed Petitioner with a different mental illness or testified that

Prozac exacerbated Petitioner’s mental illness rather than helped to cure his

depression.

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As to whether counsel should have interviewed more witnesses, Petitioner

has not shown that jurists of reason would debate the merits of this claim. We

note that “an attorney must engage in a reasonable amount of pre-trial

investigation and[,] at a minimum, interview potential witnesses and make an

independent investigation of the facts and circumstances in the case.” Harrison

v. Quarterman, 496 F.3d 419, 425 (5th Cir. 2007) (quoting Bryant v. Scott, 28

F.3d 1411, 1415 (5th Cir. 1994)). If counsel does not speak to a witness, “counsel

is ‘ill-equipped to assess [the witness’s] credibility or persuasiveness . . . .’”

Anderson v. Johnson, 338 F.3d 382, 392 (5th Cir. 2003) (quoting Bryant, 28 F.3d

at 1419)); see also Sonnier, 476 F.3d at 358 (concluding that the trial counsel did

not make a reasonable investigation because counsel did not talk to the

defendant’s family and acquaintances at the length or in the depth required,

thus making it unlikely that counsel’s investigation would uncover mitigation

evidence). However, “there comes a point at which evidence from more distant

relatives can reasonably be expected to be only cumulative, and the search for

it distractive from more important duties.” Bobby v. Van Hook, 130 S. Ct. 13, 19

(2009).

Even if it were debatable whether counsel did as thorough a job as

appropriate in interviewing witnesses, we conclude that jurists of reason would

not debate the prejudice prong even under a less deferential standard of review.

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Most of the testimony that would have been provided by these additional

witnesses is cumulative of that actually presented during the mitigation phase.

Any new evidence provided in the affidavits of the family members is not

significant enough to render it debatable among jurists of reason whether a juror

would have decided against imposing the death penalty based upon this

additional evidence.

Here, we use a de novo standard of review rather than the usual AEDPA standard

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because the state court did not reach this prong. Wiggins, 539 U.S. at 534. 

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Turning to the issue of investigation into the effects of Prozac, we again

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cannot find that reasonable jurists would debate whether counsel rendered

deficient performance by failing to uncover evidence of Petitioner’s strange

behavior, Petitioner’s family history of mental illness, or that Prozac could

potentially trigger or exacerbate mania. Even if counsel was or should have

been aware that Petitioner acted increasingly strangely in the months leading

up to the crime, it is difficult to see how this information would cause reasonable

counsel to conduct more investigation, especially given Petitioner’s extensive

history of mental illness.

Further, counsel hired two independent experts to examine Petitioner, and

the testifying expert testified that he reviewed approximately eighteen inches

worth of medical records in preparing his diagnosis. While counsel cannot

completely abdicate a responsibility to conduct a pre-trial investigation simply

by hiring an expert, counsel should be able to rely on that expert to alert counsel

to additional needed information or other possible routes of investigation. Both

experts hired by the defense, the prosecution’s testifying expert, and doctors

from Whitfield Institution diagnosed Petitioner with a combination of

depression, borderline personality disorder, and alcohol and substance abuse

issues. These doctors were aware of Petitioner’s increased Prozac dosage just

prior to his transfer to Whitfield. Yet, none of these doctors opined that

Petitioner suffered from bipolar disorder or schizoaffective disorder, as now

averred by Petitioner’s post-conviction expert. Petitioner has not submitted an

affidavit from Dr. Galvez, the defense’s testifying expert, stating that he would

have changed his testimony or diagnosis if he had the additional information

We note that it makes no difference to our analysis that the state court did not 5

mention this specific issue in rendering its decision. We only look to the ultimate conclusion

of the court in determining its reasonableness, not whether the court analyzed every angle of

the evidence. Neal, 286 F.3d at 246.

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regarding Petitioner’s strange behavior and his family history. Compare Smith,

311 F.3d at 676 (finding counsel’s actions in relying on his expert were not

deficient and noting that the petitioner presented no evidence that the expert

would have changed his opinion had he been presented with additional test

results that were largely similar to those already used), with Wallace v. Stewart,

184 F.3d 1112, 1116 (9th Cir. 1999) (finding counsel’s performance deficient and

noting that doctors testifying both for and against the petitioner agreed that

their diagnoses were at least incomplete because they did not receive family

background information from counsel).

We further agree with the district court’s finding that the opinions

expressed in the new expert affidavits, some of which were submitted by

Petitioner to the district court for the first time, indicate a mere disagreement

among experts. At best, these affidavits only speculate as to what the defense

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expert would have said if he had this information. Further, the only timely

submission to the district court was Dr. Zimmerman’s affidavit. His affidavit is

wholly conclusory about the effects of Prozac on an individual such as Petitioner.

Further, he purports to opine “to a reasonable degree of medical certainty,” but

he is a psychologist, not a medical doctor.

Even assuming that counsel should have done more investigation into

Petitioner’s family history and the effects of Prozac, we find that reasonable

jurists could not debate whether Petitioner has demonstrated resulting

prejudice. The jury heard testimony from three family members and the defense

expert about Petitioner’s significant history of mental illness and suicide

attempts. We cannot see how testimony that a relative also had a mental illness

or that Petitioner acted increasingly strangely just before committing the crimes

The district court did not consider one of the expert’s declarations, finding that 6

Petitioner was untimely in presenting it for the first time in a motion to alter the district

court’s judgment.

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would have a reasonable probability of changing the outcome absent expert

testimony linking such evidence to some deeper mental issue at the time of the

crimes. The defense expert testified that Petitioner suffered from at least three

mental illnesses: borderline personality disorder, major depression, and

substance and alcohol abuse. The defense expert further stated that Petitioner

was under extreme mental or emotional disturbance at the time of the crimes.

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Even the prosecution’s own expert conceded that Petitioner may have had

difficulty appreciating the criminality of his conduct or conforming his conduct

to the requirements of the law. While the prosecution’s expert attributed those

difficulties more to alcohol and substance abuse than to organic mental illness,

defense counsel pointed out during cross-examination that the mitigating factors

did not delineate the cause of Petitioner’s impairment. Ultimately, Petitioner

has not provided more than speculative evidence as to whether the defense’s

expert would have testified differently. Further, Petitioner has not shown how

a different diagnosis would have been of such a compelling nature as to make it

debatable whether a reasonable probability existed that at least one juror would

have decided against imposing the death penalty.

Finally, to the extent Petitioner’s claim is that more experts should have

been called, jurists could not debate whether the state court was unreasonable

in finding counsel’s performance constitutionally sufficient. Claims that counsel

was deficient for failing to call additional witnesses are not favored on federal

habeas review because the presentation of witnesses is generally a matter of

The mitigating factors submitted to the jury included: (1) whether the defendant was

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under an extreme emotional or mental disturbance at the time of the crimes; (2) whether the

defendant appreciated the criminality of his conduct or whether he could conform his conduct

to the requirements of law; (3) the defendant’s age; (4) the defendant’s lack of prior criminal

history; and (5) any other matter, any other aspect of the defendant’s character or record, and

any other circumstance of the offense brought during the trial that the jury deems mitigating. 

The only aggravating factor submitted was whether the capital offense was committed for

pecuniary gain during the course of armed robbery, to which the jury answered “yes.”

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trial strategy and speculation about what witnesses would have said on the

stand is too uncertain. Woodfox, 609 F.3d at 808. This court’s precedent

establishes that a petitioner must “name the witness, demonstrate that the

witness was available to testify and would have done so, set out the content of

the witness’s proposed testimony, and show that the testimony would have been

favorable to a particular defense.” Day v. Quarterman, 566 F.3d 527, 538 (5th

Cir. 2009). Petitioner has not met the requirements set out in Day as to his two

post-conviction experts, as neither expert’s declaration contains a statement that

the expert was willing and available to testify at trial. See Woodfox, 609 F.3d at

808 (experts required to state that they could and would have testified at

original trial even where they otherwise state they would be willing to testify in

future proceedings). Having found that Petitioner has not made a substantial

showing of the denial of a constitutional right, we deny Petitioner’s request for

a COA on his ineffective assistance of counsel claim.

B. Evidentiary Hearing

We also deny a COA on the question of whether the district court abused

its discretion in denying Petitioner’s request for an evidentiary hearing on his

claim. To find an abuse of discretion, we must be convinced that the state court

did not provide Petitioner with a full and fair hearing and if Petitioner’s factual

allegations were proven true, he would be entitled to habeas relief. Clark v.

Johnson, 202 F.3d 760, 766 (5th Cir. 2000). No showing has been made that

would make this point debatable.

IV. Conclusion

Petitioner’s request for a COA on two issues is DENIED.

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