Edwin Turner v. Christopher Epps, Commissioner , 412 F. App'x 696 ( 2011 )

Case: 10-70018 Document: 00511386380 Page: 1 Date Filed: 02/17/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 17, 2011
No. 10-70018 Lyle W. Cayce
Clerk
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.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.1 In the same
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
1
The Strickland standard governs ineffective assistance of counsel claims. Strickland
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).2
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. C ONST. amend. VI; Wiggins, 539 U.S. at 521 (citing Strickland, 466 U.S. at686-87 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).3 A claim of ineffective
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).
2
We do not make any pronouncements as to whether the more deferential standard
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.
3
The rule set forth in Strickland is “clearly established Federal law, as determined by
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.4
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.
4
Here, we use a de novo standard of review rather than the usual AEDPA standard
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,5 we again
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
5
We note that it makes no difference to our analysis that the state court did not
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.6 At best, these affidavits only speculate as to what the defense
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
6
The district court did not consider one of the expert’s declarations, finding that
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.7
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
7
The mitigating factors submitted to the jury included: (1) whether the defendant was
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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