Swisher v. True ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BOBBY WAYNE SWISHER, 
Petitioner-Appellant,
v.
 No. 02-10
PAGE TRUE, Warden, Sussex I State
Prison,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, Senior District Judge.
(CA-00-950-7)
Argued: September 23, 2002
Decided: March 28, 2003
Before LUTTIG and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Application for certificate of appealability denied and appeal dis-
missed by published opinion. Judge Williams wrote the opinion, in
which Judge Luttig and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Anthony Frazier King, WALLACE, KING, MARRARO
& BRANSON, Washington, D.C., for Appellant. Pamela Anne
Rumpz, Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellee. ON BRIEF: Steven
2 SWISHER v. TRUE
D. Rosenfield, Charlottesville, Virginia, for Appellant. Jerry W. Kil-
gore, Attorney General of Virginia, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellee.
OPINION
WILLIAMS, Circuit Judge:
Bobby Wayne Swisher applies to this court for a certificate of
appealability (COA) to review the district court’s dismissal of his
petition under 28 U.S.C.A. § 2254 (West 1994 & Supp. 2002).1
Swisher asserted a variety of claims in his habeas petition in the dis-
trict court. In his motion for a COA, Swisher asserts that he is entitled
to relief as to several of those claims including, inter alia, the follow-
ing: (1) that the Commonwealth, in prosecuting him, knowingly elic-
ited perjurious testimony from a witness and failed to correct the
erroneous impression conveyed by that witness’s testimony, in viola-
tion of the Fourteenth Amendment; (2) that his counsel failed ade-
quately to impeach a witness against him with the witness’s prior
inconsistent statement to police, thus providing ineffective assistance
of counsel in violation of the Sixth Amendment; and (3) that the
Commonwealth, in violation of Brady v. Maryland, 373 U.S. 83(1963), failed to turn over evidence that a witness against him sought
(and possibly received) a monetary reward in exchange for his testi-
mony. Finding that Swisher has not made the requisite substantial
showing of the denial of a constitutional right as to any of these
claims, we deny Swisher’s application for a COA and dismiss his
appeal.
I.
The undisputed facts of Swisher’s case are summarized in the opin-
ion of the Supreme Court of Virginia resolving Swisher’s appeal from
his conviction. Swisher v. Commonwealth, 506 S.E.2d 763 (Va.
1
Swisher named Page True, Warden of Sussex I State Prison, as the
Respondent in his petition. For ease of reference, we refer to Respondent
as "the Commonwealth."
SWISHER v. TRUE 3
1998). We restate those facts relevant to Swisher’s petition briefly
below.
On February 5, 1997, Dawn McNees Snyder disappeared from the
florist shop where she worked in Augusta County, Virginia. Her body
was discovered on February 21, 1997, on the bank of the South River,
approximately two miles from the florist shop. Forensic examination
revealed that she had been raped, sodomized, and that her death had
been caused by some violence to her neck.2
On February 22, 1997, Swisher was at an apartment with two
friends, Clarence Henry Ridgeway, Jr. and Shane Knous. Swisher told
Ridgeway and Knous that he had abducted, raped, sodomized, and
killed Snyder. He stated specifically that on February 5 he entered the
florist shop where Snyder worked and told her he had a gun in his
pocket. He also threatened Snyder with a butcher’s knife. Swisher
forced Snyder to accompany him from the florist shop to a field near
the South River, where he forced her to perform oral sex on him and
remove her clothes. Swisher then raped Snyder and again forced her
to perform oral sex on him. Finally, after Snyder put her clothes back
on, Swisher cut her face and throat with the butcher’s knife and threw
her, still alive, into the South River. As Snyder floated in the river,
Swisher walked along the bank and shouted, "Are you dead yet?" A
few moments later, when she began to crawl up the bank, Swisher
"got scared and took off running" away from the river to his house.
Swisher, 506 S.E.2d at 765.
Ridgeway notified the Augusta County Sheriff’s Office of Swish-
er’s statements on the morning of February 23. Later that day,
Swisher accompanied four deputies to the Sheriff’s Office for ques-
tioning. After being arrested and advised of his Miranda rights,
2
Although the medical examiner who testified at trial was unable to
determine conclusively whether Snyder’s throat had been cut because
animals had eaten her larynx, trachea, and the large arteries and veins in
the neck, he testified that her death was the result of "violent causes
probably related to the neck" and noted that the highest concentration of
blood on her clothing appeared around the neck and chest area. Swisher
v. Commonwealth, 506 S.E.2d 763, 766 (Va. 1998) (internal quotation
marks omitted).
4 SWISHER v. TRUE
Swisher admitted, in an audiotaped confession, that he had sodomized
and raped Snyder, murdered her by cutting her throat, and thrown her
into the South River.
Swisher was charged with murder, abduction, rape, and forcible
sodomy in Snyder’s death. Following a jury trial, the jury found
Swisher guilty of all charges on October 29, 1997, including capital
murder pursuant to Va. Code Ann. § 18.2-31 (Michie 1996). In the
penalty phase of the trial, the Commonwealth presented the testimony
of Ridgeway, who testified that Swisher had confessed to him and
Knous that he murdered Snyder. Ridgeway testified that Swisher had
told him Swisher felt like he could "do it again." (J.A. at 326.) In a
previous statement to police, however, Ridgeway stated that he had
not heard Swisher say he felt like he could "do it again," but that
Knous remembered hearing Swisher make such a statement. (J.A. at
317.) Ridgeway further testified that he had not sought and was not
interested in a reward offered for information about Snyder’s murder.3
3
Ridgeway’s testimony regarding the reward money occurred during a
colloquy with defense counsel, as related below:
Q: Did you put in for the reward?
A: No, sir.
Q: You haven’t put in for the reward?
A: No, sir.
Q: And you haven’t told anybody that you put in for the ten
thousand dollar reward?
A: No, Sir. I have a feeling . . .
Q: You deny that, too?
A: I have a feeling that — the reason why I did this was to find
out the truth. It hasn’t nothing to do with about any money.
Q: So you did this to — to — for yourself; to find out the
truth?
A: That . . .
Q: And you don’t want the ten thousand dollars?
A: Honestly, yes sir. Yes, sir.
SWISHER v. TRUE 5
At the conclusion of the penalty phase, the jury fixed Swisher’s sen-
tence for Snyder’s murder at death, and the trial judge sentenced him
to death on February 18, 1998.
Swisher filed a direct appeal, which was consolidated with the
automatic review of his death sentence in the Supreme Court of Vir-
ginia. See Swisher, 506 S.E.2d at 765; Va. Code Ann. § 17.1-313(A)
(Michie 1999) (providing for automatic review of death sentences in
the Supreme Court of Virginia); § 17.1-409 (authorizing the Supreme
Court of Virginia to certify for its review a case filed with the Vir-
ginia Court of Appeals before that court has resolved the case). The
Supreme Court of Virginia denied relief. Swisher then filed a petition
for a writ of habeas corpus in the Supreme Court of Virginia, see Va.
Code Ann. § 8.01-654(C) (Michie 2000) (vesting exclusive jurisdic-
tion in the Supreme Court of Virginia of petitions for writs of habeas
corpus by petitioners held under a sentence of death), and was denied
relief. Thereafter, he filed a petition pursuant to 28 U.S.C.A. § 2254in the United States District Court for the Western District of Vir-
ginia. On March 28, 2002, the district court denied relief on that petition.4
Q: You don’t want that?
A: No, sir.
(J.A. at 333-34.)
The district court stated in its opinion that "[t]rial counsel [for
Swisher] found no indication in the prosecutors’ open file indicating that
anyone at all received the reward money." (J.A. at 740.) The parties
apparently now agree, however, that the reward was in fact paid to some-
one after the trial. Swisher asserts that Ridgeway and Knous split the
reward.
Investigators hired by Swisher’s counsel in this appeal submitted affi-
davits in which they state that they found Ridgeway and asked him
whether he had received a reward for providing information about Sny-
der’s murder. They assert that Ridgeway confirmed that after Swisher’s
trial he and Knous received the offered reward. The investigators further
assert that Ridgeway told them that he "understood he was in line for
some money" before the trial began, but that he refused to provide an
affidavit stating these facts.
4
Swisher moved in the district court for a COA, which was denied. See
Fed. R. App. P. 22(b)(1). As noted above, Swisher has now petitioned
6 SWISHER v. TRUE
Swisher seeks a COA as to numerous claims raised in the district
court. We address the following three claims below: (1) that the Com-
monwealth knowingly elicited perjurious testimony; (2) that Swisher
received ineffective assistance of counsel; and (3) that the Common-
wealth failed to turn over Brady material.5
II.
We may only issue a COA if Swisher has made a "substantial
showing of the denial of a constitutional right." 28 U.S.C.A.
§ 2253(c)(2) (West Supp. 2002). Absent a COA, "an appeal may not
be taken" to this court from the district court’s denial of relief on the
§ 2254 petition. Id. § 2253(c)(1); cf. Miller-El v. Cockrell, ___ U.S.
___, 123 S. Ct. 1029, 1039 (2003) (noting that a COA is "a jurisdic-
tional prerequisite" to consideration of an appeal by a prisoner denied
habeas relief in the district court). To make the requisite substantial
showing, "a petitioner must ‘show 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 "ade-
quate to deserve encouragement to proceed further."’" Id. (quoting
Slack, 529 U.S. at 484 (in turn quoting Barefoot v. Estelle, 463 U.S.
880, 893 & n.4 (1983))).
this court for the required certificate. See 28 U.S.C.A. § 2253(c)(1) (West
Supp. 2002) (stating that no appeal may be taken from the final order of
a district court disposing of an applicant’s petition under 28 U.S.C.A.
§ 2254 unless a circuit justice or judge issues a COA).
5
Swisher asserted a number of other claims in his application for a
COA, including the following: that the Commonwealth withheld evi-
dence, in violation of Brady, about its failure to treat Swisher’s depres-
sion prior to trial and its administration of anti-depressant drugs to
Swisher; that Swisher’s trial counsel was deficient in several ways other
than those discussed above, including by failing to impeach other wit-
nesses who testified at trial or at the sentencing hearing; that the Com-
monwealth knowingly used perjured testimony from witnesses other than
Ridgeway; that the jury instructions and verdict form used at sentencing
were defective and improper; and that Virginia’s death penalty statute,
and the death penalty itself, are unconstitutional. We conclude that no
reasonable jurist would find the district court’s resolution of those claims
debatable or wrong and deny a COA as to each of them.
SWISHER v. TRUE 7
The Supreme Court has held that "[w]here a district court has
rejected [a petitioner’s] constitutional claims on the merits, . . . [t]he
petitioner must demonstrate that reasonable jurists would find the dis-
trict court’s assessment of the constitutional claims debatable or
wrong" to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484
(2000). Further, "[w]hen the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s underlying consti-
tutional claim, a COA should issue when the prisoner shows, at least,
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; cf. Miller-El,
123 S. Ct. at 1046 (Scalia, J., concurring) (noting that "a habeas peti-
tioner seeking to appeal a district court’s denial of habeas relief on
procedural grounds must not only make a substantial showing of the
denial of a constitutional right but also must demonstrate that jurists
of reason would find it debatable whether the district court was cor-
rect in its procedural ruling"). The Supreme Court has stated that
"[t]his construction [of the standard applicable when the district court
rejects a claim on procedural grounds] gives meaning to Congress’
requirement that a prisoner demonstrate substantial underlying consti-
tutional claims and is in conformity with the meaning of the ‘substan-
tial showing’ standard provided in Barefoot and adopted by Congress
in AEDPA." Slack, 529 U.S. at 484 (internal citation omitted).
The Supreme Court recently provided further guidance on the
question of how an application for a COA is to be assessed in Miller-
El. The Court’s opinion in Miller-El makes clear that whether to grant
a COA is intended to be a preliminary inquiry, undertaken before full
consideration of the petitioner’s claims. Miller-El, 123 S. Ct. at 1039(noting that the "threshold [COA] inquiry does not require full con-
sideration of the factual or legal bases adduced in support of the
claims"); id. at 1040 (noting that "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 petitioner
will not prevail") (emphasis added); id. at 1042 (noting that "a COA
determination is a separate proceeding, one distinct from the underly-
ing merits"); id. at 1046-47 (Scalia J., concurring) (noting that it is
erroneous for a court of appeals to deny a COA only after consider-
ation of the applicant’s entitlement to habeas relief on the merits).
8 SWISHER v. TRUE
Indeed, such "full consideration" in the course of the COA inquiry is
forbidden by § 2253(c). Id. at 1039 ("When a court of appeals side
steps [the COA] 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 jurisdic-
tion.").
The current posture of this appeal, in which we are called on to
determine whether to issue a COA as to issues which have been fully
briefed and argued before the panel, is thus out of step with the proce-
dural treatment that the Supreme Court has indicated is appropriate
for COA applications under § 2253(c). Unable to rectify that circum-
stance, we proceed nevertheless to address Swisher’s request for a
COA under the standard enunciated by the Supreme Court in Slack
and Miller-El.
A.
Swisher argues that the Commonwealth knowingly elicited perjuri-
ous testimony from Ridgeway during the penalty phase of his trial.
Specifically, he asserts that the Commonwealth, knowing Ridgeway
had told police he had not heard Swisher say he could "do it again,"
nevertheless permitted Ridgeway to testify that he had heard Swisher
make that statement. Swisher argues that the Commonwealth’s having
elicited this testimony from Ridgeway, knowing it to be false, and
having failed to correct the erroneous impression it created, violated
his rights under the Fourteenth Amendment. See Napue v. Illinois,
360 U.S. 264, 269 (1959); see also Giglio v. United States, 405 U.S.
150, 153 (1972) (noting that "deliberate deception of a court and
jurors by the presentation of known false evidence is incompatible
with rudimentary demands of justice") (internal quotation marks
omitted).
The district court denied this claim because Swisher could not
show cause and prejudice to overcome his procedural default.6
6
The Supreme Court of Virginia found this claim defaulted because it
had not been raised at trial or in Swisher’s direct appeal. See Slayton v.
Parrigan, 205 S.E.2d 680, 682 (1974) (holding that a claim that could
have been raised at trial or on direct review, but was not, may not be
raised on state collateral review). This state procedural bar prevented
federal habeas corpus review of Swisher’s claim absent cause and preju-
dice for the default. See Gray v. Netherland, 518 U.S. 152, 162 (1996).
SWISHER v. TRUE 9
Because, as we discuss briefly below, Swisher has not shown "that
jurists of reason would find it debatable whether the district court was
correct in its procedural ruling," Slack, 529 U.S. at 484, we deny the
application for a COA on this claim.
Swisher argues that he has demonstrated cause because the Com-
monwealth’s "deliberate use of this perjured testimony was designed
to obscure its falsity," (Appellant’s Br. at 41), and therefore its use
constituted " ‘interference by officials’ that ma[de] compliance with
the State’s procedural rule impracticable." McCleskey v. Zant, 499
U.S. 467, 494 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488
(1986) (internal quotation marks omitted)). The basis for Swisher’s
assertion that Ridgeway’s testimony was perjurious, however, is the
inconsistency between the statement Ridgeway gave to the police and
the statement he made on the stand, and Swisher was in possession
of Ridgeway’s statement to police when Ridgeway testified. Accord-
ingly, no act by the Commonwealth impeded Swisher’s ability to
raise the claim he now raises at trial or on appeal, and he cannot dem-
onstrate cause for his procedural default on this basis.
Swisher also asserts that he has demonstrated cause stemming from
his counsel’s ineffectiveness in defaulting this claim. See Burket v.
Angelone, 208 F.3d 172, 189 (4th Cir. 2000) (constitutionally ineffec-
tive assistance of counsel may establish cause for a procedural
default); see also Murray v. Carrier, 477 U.S. 478, 488-89 (1986).
The requisite ineffective assistance, however, "is itself an independent
constitutional claim" subject to the requirement of exhaustion in state
court and to the doctrine of procedural default. Edwards v. Carpenter,
529 U.S. 446, 451 (2000) (emphasis in original); id. at 453 (holding
that ineffective assistance claims asserted as cause for procedural
default of other claims are themselves subject to procedural default
rule); see also Carrier, 477 U.S. at 488-89 (noting that "the exhaus-
tion doctrine . . . generally requires that a claim of ineffective assis-
tance be presented to the state courts as an independent claim before
it may be used to establish cause for a procedural default"). Swisher
does not assert that he can demonstrate cause and prejudice for his
procedural default of this ineffective assistance claim. Accordingly,
he cannot use ineffective assistance of counsel to demonstrate cause
for the failure to raise the use of perjured testimony claim.
10 SWISHER v. TRUE
Because Swisher has not shown that the district court’s procedural
ruling was debatable, we deny a COA as to this claim.
B.
Swisher next contends that his counsel was ineffective at trial for
failing to cross-examine Ridgeway about the inconsistency between
Ridgeway’s statement to police, in which he stated that he had not
heard Swisher say he felt like he could "do it again," and his testi-
mony at trial, during which he stated that he had heard Swisher make
such a statement.7 Because the district court dismissed Swisher’s
claim on the merits, we ask whether Swisher has shown that "reason-
able jurists would find the district court’s assessment of the constitu-
tional claims debatable or wrong." Slack, 529 U.S. at 484.
7
During his testimony at the sentencing phase of the trial, Ridgeway
was asked by the prosecutor whether Swisher had "said anything about
the future" in the course of his confession. The following exchange
between the prosecutor and Ridgeway occurred:
Ridgeway: He said that — after he had got upset and every-
thing, he [said] "It feels like he could do it again." And that’s . . .
Prosecutor: He told you it felt like he could do it again?
Ridgeway: That’s what really got me, is when he looked me in
the eyes and said that.
(J.A. at 326.)
In a previous, audiotaped conversation with police, Ridgeway had
stated that "Bobby did tell us near the end of [the confession] he would
do it again." (J.A. at 317.) In response to the question "And when did he
tell you that?," however, Ridgeway then said:
before I picked up the knife he said he feels like he could do it
again. But sir I kinda of didn’t the reason I’m saying this now
is because I don’t remember [Swisher] saying that [he would do
it again] cause if it was when I got up but Shane recalls, remem-
ber [sic] him saying that to a T but I don’t remember him saying
that I’m just going off what Shane said because Shane was
scared then.
(J.A. at 317.)
SWISHER v. TRUE 11
To obtain relief on an ineffective assistance of counsel claim under
Strickland v. Washington, 466 U.S. 668 (1984), a petitioner must
show (1) that his counsel’s performance was "deficient in that it fell
below an objective standard of reasonableness and outside the wide
range of professionally competent assistance . . . and (2) that the defi-
cient performance prejudiced the defense in that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different." Hunt v. Lee, 291 F.3d 284, 289 (4th Cir. 2002) (citing Str-
ickland, 466 U.S. at 687-90, 694) (internal quotation marks omitted).
The district court denied relief on this claim, finding both that coun-
sel’s performance was objectively reasonable, and "[m]ost impor-
tantly," that Swisher could not show prejudice from any errors of
counsel because"the jury heard substantial evidence to support find-
ings of vileness and future dangerousness,"8 including physical evi-
dence of the circumstances of the crime, Swisher’s own confession,9
and evidence that Swisher had been caught with a razor blade and a
8
Virginia’s death penalty statute provides that before a sentence of
death is imposed, the court or jury must find either a probability of future
dangerousness "or that his conduct in committing the offense for which
he stands charged was outrageously or wantonly vile." Va. Code Ann.
§ 19.2-264.2 (Michie 2000). While the statute leaves significant discre-
tion in the hands of the jury, see Buchanan v. Angelone, 522 U.S. 269,
276 (1998), it leaves no doubt that a finding either of future dangerous-
ness or vileness is sufficient to support imposition of the death penalty.
In Swisher’s case, the jury was presented with a verdict form that con-
tained five sample verdicts, which may be briefly summarized as fol-
lows: (1) both aggravating factors demonstrated, punishment fixed at
death; (2) future dangerousness demonstrated, punishment fixed at death;
(3) outrageous or wanton vileness of offense demonstrated, punishment
fixed at death; (4) punishment fixed at life; (5) punishment fixed at life
plus a fine. (J.A. at 490-91.) The jury selected the first option, unani-
mously finding that both aggravating factors were demonstrated beyond
a reasonable doubt. (J.A. at 490.)
9
The facts of the murder were uncontroverted. Nearly all of the details,
including the rape and the facts that Swisher cut Snyder’s throat and
threw her in the river, were contained in his confession to the police,
which was submitted to the jury. The only details added by Ridgeway’s
testimony were Swisher’s query, "Are you dead yet?" after he had
thrown Snyder in the river and his statement that he "felt like he could
do it again."
12 SWISHER v. TRUE
"shank" in his cell while awaiting trial at the local jail and that he had
repeatedly threatened jailers during that time. (J.A. at 723-24.)
Because Swisher has not shown that reasonable jurists would find
the district court’s assessment of the claims debatable or wrong, we
deny a COA as to this claim.
C.
Swisher also asserts that the Commonwealth, in violation of Brady,
failed to turn over to his counsel evidence that Ridgeway sought and
received a reward in exchange for his testimony. The district court
found that this claim, which Swisher never presented in state court,
was "clearly unexhausted," but elected to deny the claim on its merits
pursuant to 28 U.S.C.A. § 2254(b)(2) (stating that an application for
a writ of habeas corpus in federal court may be denied on the merits,
notwithstanding the applicant’s failure to exhaust the remedies avail-
able in state court). Relying on the evidence of the vileness of Swish-
er’s crime and his future dangerousness, which it had previously
discussed, the district court concluded, "[g]iven the strength of other
evidence before the jury in support of vileness and future dangerous-
ness, there is no reasonable probability that even the elimination of
Ridgeway’s testimony would cause a reasonable factfinder to vote for
life."10 (J.A. at 741.) We again assess whether jurists of reason would
find the district court’s assessment of Swisher’s claim debatable or
wrong. Slack, 529 U.S. at 484.
10
Swisher asserts also that he was entitled to an evidentiary hearing to
develop the basis for this claim in the district court, arguing that the bar
imposed by 28 U.S.C.A. § 2254(e)(2) to such evidentiary hearings where
"the applicant has failed to develop the factual basis of a claim in State
court proceedings" is inapplicable because he "was unable to develop his
claim in state court despite diligent effort," (Appellant’s Br. at 20 (citing
Williams v. Taylor, 529 U.S. 420, 437 (2001) (M. Williams))). Despite
awareness of the grounds for this claim in state court (as demonstrated
by his counsel’s questioning of Ridgeway about the reward), Swisher did
not raise a Brady claim on this basis or seek an evidentiary hearing in
state court. See M. Williams, 529 U.S. at 437 ("Diligence will require, in
the usual case, that the prisoner, at a minimum, seek an evidentiary hear-
ing in state court in the manner prescribed by state law.").
SWISHER v. TRUE 13
It is not entirely clear what evidence or impeachment material
Swisher asserts should have been produced. His primary contention
appears to be that the Commonwealth had an obligation to turn over
evidence that after trial Ridgeway received the reward. He also sug-
gests, however, that Ridgeway "received an explicit promise" before
trial that he would receive the reward in exchange for his testimony
(Appellant’s Br. at 21), and that Ridgeway testified "in hopes of
receiving" the reward (Appellant’s Br. at 20). To establish a Brady
claim, a defendant must demonstrate not only the existence of evi-
dence favorable to the defendant that was suppressed by the govern-
ment, but also a "reasonable probability" that the result of the
proceedings would have been different had the evidence been dis-
closed. See Jones v. Cooper, 311 F.3d 306, 314 n.14 (4th Cir. 2002).
Even accepting Swisher’s allegations as true, we cannot find that
any reasonable jurists would conclude that the result of any proceed-
ing in this case would have been different. In rejecting Swisher’s
claim, the district court referred to the admitted facts of Snyder’s mur-
der and the evidence that Swisher had been caught with a shank and
a razor blade in his cell while awaiting trial at the local jail, and that
he repeatedly threatened his jailers during that time. Based on this
evidence, the district court’s conclusion that Swisher would have been
convicted of capital murder and sentenced to death even if
Ridgeway’s testimony had been completely impeached by evidence
that he was promised, and later received, a reward for his testimony
is not debatable. Because Swisher has not shown that reasonable
jurists would find the district court’s assessment of the claims debat-
able or wrong, we deny a COA as to this claim.
III.
For the reasons stated above, Swisher’s application for a COA is
denied and the appeal is dismissed.
DISMISSED