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For the Fifth Circuit
No. 00-40061
Petitioner - Appellant,
GARY JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division,
Respondent - Appellee.
Appeal from the United States District Court
For the Eastern District of Texas, Beaumont Division
September 12, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Texas death row inmate James Lee Clark requests that we grant
a certificate of appealability as required by 28 U.S.C. 2253(c)
before an appeal may be taken from the district court's denial of
habeas relief. We deny Clark's request.

In the early morning of June 7, 1993, James Lee Clark and
James Brown arrived at a Texaco store in Denton, Texas, and asked
the store clerk to call an ambulance for Brown who had suffered a
gunshot wound. Subsequent investigation revealed that Brown
accidentally shot himself in the leg at point blank range with a
shotgun while he and Clark were assaulting Shari Catherine "Cari"
Crews (16 years old) and Jesus Garza (17 years old) at Clear Creek.
Police recovered both bodies from the creek and determined that
Crews had been sexually assaulted by Clark, as verified by DNA
evidence, and then killed with a single shotgun wound (a contact
wound) to the back of the head. Garza also died from a single
shotgun wound, but it was to the left side of his chin or jaw.
Powder residue revealed a short muzzle-to-wound distance, but it
was not a contact wound. Police also recovered a 12 gauge double
barrel shotgun and a .22 caliber rifle from the crime scene.
Further investigation revealed that Clark and Brown, both
parolees, stole the shotgun and rifle in car burglaries on June 4,
1993. The stock of the rifle had been shortened and police found
the sawed off portion while searching Clark's residence; the stock
of the shotgun was cracked. The search of Clark's residence also
produced tennis shoes splattered with the blood of Brown, Crews,
and Garza. During interrogation, Clark stated that Brown
instigated the incident; shot himself while using the shotgun as a
bludgeon to strike Garza in the head; and, after suffering the
severe gunshot wound to the leg, shot and killed both victims.

Brown contended that Clark killed both victims.
Clark was indicted on the charge of capital murder arising out
of the June 7, 1993, robbery, sexual assault, and death of Crews.
Clark was convicted of the capital murder on April 29, 1994, and he
was sentenced to death on May 3, 1994. The conviction and sentence
were affirmed by the Texas Court of Criminal Appeals on October 2,
1996. On October 15, 1996, Clark's trial attorneys informed him
that they would no longer represent him, and on the following day
Clark filed a pro se motion for appointment of counsel to pursue
state habeas relief. Clark also filed a pro se motion on October
18, 1996, for an extension of time to file a motion for rehearing
by the Court of Criminal Appeals. Although this motion was granted
and the time extended until November 11, 1996, no motion for
rehearing was filed.
The Court of Criminal Appeals appointed counsel for Clark to
pursue collateral proceedings on April 9, 1997. Clark subsequently
applied for a writ of habeas corpus in the trial court on October
6, 1997, challenging the validity of his conviction and sentence by
asserting eleven grounds for relief. Without holding an
evidentiary hearing, the trial court entered findings of fact and
conclusions of law. The Court of Criminal Appeals reviewed the
record, adopted the trial court's findings and conclusions (with
the exception of finding of fact number ten, which it found
unsupported by the record), and denied habeas relief on July 8,

On July 27, 1998, Clark filed a petition for habeas relief in
the federal district court asserting five grounds for relief: (1)
the prosecutor suppressed exculpatory information; (2) the
petitioner received a disproportionate sentence given his role in
the crime; (3) the trial court's failure to instruct the jury on
the unavailability of parole during the initial thirty-five years
of a life sentence violated due process of law; (4) the petitioner
was denied effective assistance of counsel during direct appeal;
and (5) the petitioner was denied effective assistance of counsel
when his appointed counsel failed to present available evidence
during the punishment stage. Without allowing for discovery or
holding an evidentiary hearing, and after conducting a de novo
review of the magistrate's report and overruling Clark's objections
thereto, on December 13, 1999, the district court adopted the
magistrate's conclusions of law and findings of fact, and denied
the petition for habeas corpus.
On January 12, 2000, Clark timely filed a notice of appeal and
simultaneously applied to the district court for a certificate of
appealability (COA) as required by 28 U.S.C. 2553(c) to obtain
review in this court of the denial of federal habeas relief.
Clark's application urged the same five arguments that were
rejected by the district court, and it also sought to appeal the
district court's refusal to permit discovery or to conduct an
evidentiary hearing regarding the first five claims for relief.
The district court denied COA as to all six claims on January 28,

Clark seeks a COA from this court on five constitutional
issues: (1) the prosecution's violation of Clark's right to due
process of law by its failure to disclose to Clark's trial counsel
favorable, material evidence as required by Brady v. Maryland, 373
U.S. 83 (1963); (2) the violation of Clark's Eighth and Fourteenth
Amendment rights to be free from cruel and unusual punishment
resulting from the prosecution's inconsistent argument in a
subsequent related trial as to the identity of the shooter and the
state trial court's jury instructions, which permitted a capital
murder conviction and a sentence of death without a finding that
Clark was the actual killer, had attempted to kill, or had intended
that a human life be taken; (3) the violation of Clark's due
process rights resulting from the trial court's failure to instruct
the jury that Clark would be ineligible for parole for thirty-five
years if sentenced to life imprisonment; (4) the denial of
effective assistance as guaranteed by the Sixth and Fourteenth
Amendments at a critical stage during Clark's direct appeal that
precluded him from seeking a rehearing in the Court of Criminal
Appeals and a petition for writ of certiorari to the United States
Supreme Court; and (5) the denial of effective assistance of
counsel at the punishment stage of the capital murder trial during
which Clark's counsel presented no favorable evidence despite its
availability, in violation of the Sixth and Fourteenth Amendments.

Clark additionally challenges the federal district court's refusal
to permit discovery or to hold an evidentiary hearing to determine
the validity of Clark's claim of a Brady violation and of
ineffective assistance of counsel at the punishment stage.
This case is governed by the AEDPA because Clark's petition
for federal habeas relief was filed on July 27, 1998, after the
AEDPA effective date of April 24, 1996. See Green v. Johnson, 116
F.3d 1115, 1119-20 (5th Cir. 1997). As Clark seeks to appeal "the
final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court," he
must first obtain a COA. 28 U.S.C. 2253(c)(1)(A). A COA may
issue only if Clark "has made a substantial showing of the denial
of a constitutional right." 28 U.S.C. 2253(c)(2). "Such a
showing requires the applicant to demonstrate 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." Hill v. Johnson, 210
F.3d 481, 484 (5th Cir. 2000) (citing and quoting Drinkard v.
Johnson, 97 F.3d 751, 755 (5th Cir. 1996), overruled in part on
other grounds by Lindh v. Murphy, 521 U.S. 320, 326 (1997) and
Williams v. Taylor, 120 S.Ct. 1495 (2000)) (internal quotation
marks and additional citations omitted). Where, as here, the
district court has rejected a prisoner's constitutional claims on
the merits, the applicant must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional

claims debatable or wrong. See Hernandez v. Johnson, 213 F.3d 243,
248 (5th Cir. 2000)(citing Slack v. McDaniel, 120 S.Ct. 1595, 1603-
04 (2000)). "We resolve doubts about whether to grant a COA in [a
petitioner's] favor, and we may consider the severity of his
penalty in determining whether he has met his `substantial showing'
burden." Hill, 210 F.3d at 484 (citing Fuller v. Johnson, 114 F.3d
491, 495 (5th Cir. 1997), cert. denied, 522 U.S. 963 (1997)).
a) Brady due process violation claim.
In Brady v. Maryland, the Supreme Court held that a prosecutor
must disclose evidence to a criminal defendant if that evidence is
favorable to the defendant and material to the defendant's guilt or
punishment. 373 U.S. at 87. The Supreme Court has found evidence
material "if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different." United States v. Bagley,
473 U.S. 667, 682 (1985). "The question is not whether the
defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received
a fair trial, understood as a trial resulting in a verdict of
confidence. A `reasonable probability' of a different result is
accordingly shown when the government's evidentiary suppression
`undermines confidence in the outcome of trial.'" Kyle v. Whitley,
514 U.S. 419, 434 (1995)(citing Bagley, 473 U.S. at 678).
Clark maintains that during his capital murder trial the state
prosecutor argued that Clark had shot Cari Crews and Jesus Garza,

whereas at the subsequent trial of Clark's co-defendant, James
Brown, the prosecutor argued that Brown was the lone triggerman in
the murders. Allegedly, the prosecutor's arguments at the Clark
trial were based upon the testimony of Dr. John Kristofferson,
Brown's orthopedic surgeon, who opined that Brown, due to the
seriousness of a gunshot wound accidentally inflicted prior to the
murders, was not likely able to walk or stand at the time Crews and
Garza were killed. This testimony, in conjunction with the expert
testimony from the autopsy physician, Dr. Marc Krouse, as to the
muzzle-to-wound distance and entry wound location regarding Garza
indicating that the shotgun was fired while being held parallel to
the front of Garza's torso, allowed the prosecutor to argue that
Clark was the triggerman since Brown was injured too severely to
load the shotgun and because "it wasn't just somebody laying on the
ground, aiming a shotgun at somebody and shooting them."1
Later, at Brown's trial, the prosecution argued that Brown
was the triggerman in both murders. This argument was again based
in part upon expert testimony given by the autopsy physician, Dr.
Marc Krouse, concerning the muzzle-to-wound distance with respect
to Jesus Garza. Clark argues that in Brown's trial Dr. Krouse's
opinion of the muzzle-to-wound distance was "manicured" or revised
to "just a few inches" instead of "a couple of feet" as he had
1Because the murder weapon was a double barrel shotgun and
because Brown was accidentally shot in the leg prior to the murders
before Crews and Garza were killed, someone must have unloaded the
spent cartridge and reloaded the shotgun.

testified in Clark's trial. Clark argues that the difference
between the versions of Dr. Krouse's expert opinions was material
and favorable to his defense, but was not available to his trial
counsel for use at his trial. According to Clark, had this
evidence been available to him, he too could have advanced the same
argument in his trial that the prosecution advanced subsequently in
Brown's trial:
Whoever shot Garza right here in the left side of the
jaw, whoever shot him had that gun three or four inches
below his chin. This gun is some 24 inches long. You
heard testimony to that. Where does that put the
trigger? That's the kind of awkward position for someone
facing Jesus [Garza] to pull the trigger and shoot him
here. What is that consistent with? What this wound and
this shotgun are consistent with is that the shooter is
sitting. And either Jesus was standing over him posing
a threat, or Jesus was as Brown said, lying unconscious
on the ground, and the shooter sitting on the ground shot
him there. That's what the physical evidence tells you.
The district court rejected Clark's argument, concluding that
(1) Dr. Krouse's testimony in both trials was essentially
consistent, i.e., in both cases he in effect testified that Garza
was killed by a shot fired a short distance from his head ("a
couple of feet" in Clark's trial and "just a few inches" in Brown's
trial) and therefore did not suggest a suppression of evidence; and

(2) that, assuming Dr. Krouse's testimony was significantly
inconsistent with respect to Garza's fatal wound, that
inconsistency would not have tended to exculpate Clark from the
crime of which he was convicted the capital murder of Cari Crews.
We cannot say that the district court erred in either finding.
We find that Clark has failed to state a Brady claim as he has
failed to show suppression and materiality. Clark has presented no
proof of suppression. "[C]losing arguments are not evidence.
Moreover, a prosecutor can make inconsistent arguments at the
separate trials of codefendants without violating the due process
clause." Beathard v. Johnson, 177 F.3d 340, 348 (5th Cir. 1999).
There is also no proof that the prosecution suppressed any evidence
regarding Dr. Krouse's testimony because the testimony was not
markedly different in the two trials. Moreover, Clark fails to
demonstrate materiality because as the prosecutor's argument in
Brown's case indicates, a muzzle-to-wound distance regarding Garza
of "just a few inches" does not make it any more likely that Garza
was killed by a shot from a sitting rather than a standing
position. Accordingly, Clark has failed to make a substantial
showing of the denial of a constitutional right with respect to his
claim of a Brady violation.
b) Enmund and Tison claim.
Clark argues that a violation of his Eighth and Fourteenth
Amendment rights resulted from the prosecution's inconsistent
arguments regarding the identity of the actual shooter in

combination with the trial court's instructions permitting a
conviction and death sentence without the jury finding that Clark
actually killed, attempted to kill, or intended that a human life
be taken, in violation of Enmund v. Florida, 458 U.S. 782 (1982),
and Tison v. Arizona, 481 U.S. 137 (1987).
Enmund v. Florida held that the death penalty may not be
imposed on one who "aids and abets a felony in the course of which
a murder is committed by others but who does not himself kill,
attempt to kill, or intend that a killing take place or that lethal
force will be employed." 458 U.S. at 797. Sentenced to death,
Enmund had driven the "getaway" car for two others who had robbed
and killed an elderly couple. Focusing on Enmund's individualized
culpability, the Court found that he did not kill, attempt to kill,
or intend to kill; thus, the imposition of the death penalty was
impermissible under the Eighth Amendment. Id. at 798. Tison v.
Arizona subsequently limited Enmund by holding that "major
participation in the felony committed, combined with reckless
indifference to human life, is sufficient to satisfy the Enmund
culpability requirement." 481 U.S. at 158.
Clark contends that two different instructions violated Enmund
and Tison. First, he argues that the use of Texas Penal Code
7.02(b),2 governing liability of co-conspirators, at the
2Texas Penal Code 7.02(b) provides: "If, in the attempt to carry
out a conspiracy to commit one felony, another felony is committed
by one of the conspirators, all conspirators are guilty of the
felony actually committed, though having no intent to commit it, if

guilt/innocence phase violates Enmund and Tison because it does not
require the co-conspirator to have the intent to commit murder.
However, Enmund and Tison apply to the sentencing phase of the
trial and not to the guilt/innocence phase. See Enmund, 458 U.S.
at 801, and Tison, 481 U.S. at 157. See also Walton v. Arizona,
497 U.S. 639, 649 (1990)("Enmund only places `a substantive
limitation on sentencing, and like other such limits it need not be
enforced by the jury.'"); Cabana v. Bullock, 474 U.S. 376, 385
(1986)("Rather, as the Fifth Circuit itself has recognized, Enmund
`does not affect the state's definition of any substantive offense,
even a capital offense.'")(citing Reddix v. Thigpen, 728 F.2d 705,
709 (5th Cir. 1984)); and Cantu v. State, 939 S.W.2d 627, 645 (Tex.
Crim. 1997)("Both Tison and Enmund were concerned with the
implementation of the death penalty on defendants who were not
proven to have an intent to kill."). Therefore, Clark's argument
based on Enmund and Tison with respect to this instruction is
without merit.
Secondly, Clark contends that Special Issue Number Two, given
during the sentencing phase, dispensed with the requirement of
finding specific intent by allowing the jury to sentence Clark to
death on the basis that he "anticipated" a human life would be
the offense was committed in furtherance of the unlawful purpose
and was one that should have been anticipated as a result of the
carrying out of the conspiracy."

taken. Relying on Texas Criminal Procedure Article 37.071, the
state court gave the following instruction:
Do you find from the evidence beyond a
reasonable doubt that the defendant, James Lee
Clark, actually caused the death of Shari
Catherine Crews, the deceased, on the occasion
in question, or if he did not actually cause
the decedent's death, that he intended to kill
the deceased or another, or that he
anticipated that a human life would be taken?
You are instructed that in answering this
issue only the conduct of the defendant can be
and that the instruction
pertaining to the law of parties heretofore
given you cannot now be considered in
answering this issue.
The jury unanimously answered yes, and subsequently, Clark was
sentenced to death. In an unpublished decision affirming the
conviction and sentence, the Texas Court of Criminal Appeals
stated, "The principle is well-established that when a jury returns
a general verdict and the evidence is sufficient to support a
finding of guilt under any of the allegations submitted, the
verdict will be upheld." Looking at the evidence, the court

determined that it was sufficient to support the theory that Clark
murdered Crews during the course of committing a sexual assault.3
Clark's jury rendered a general verdict. As such, we cannot
be confident that the jury did not convict Clark based on his
liability as a co-conspirator in the sexual assault or robbery of
the victim. "But the conclusion that the jury may not have found
that the defendant killed, attempted to kill, or intended a killing
take place or that lethal force be employed does not end the
inquiry into whether Enmund bars the death sentence; rather it is
only the first step." Bullock, 474 U.S. at 384. Reversing the
Fifth Circuit, the Supreme Court specifically rejected the argument
that a jury alone must make the Enmund determination. See id.
"Rather, the [federal habeas] court must examine the entire course
of the state-court proceedings against the defendant in order to
determine whether, at some point in the process, the requisite
3In a habeas proceeding with no evidentiary hearing, the state
court denied Clark's petition for relief on this issue by summarily
relying on Lawton v. State, 913 S.W.2d 542 (Tex. Crim. App. 1996).
The court stated, "[T]hat the jury may have found that appellant
only anticipated that death would result under Article 37.071 is
inconsequential to Enmund and Tison concerns; the jury had already
found that appellant intended to at least promote or assist in the
commission of an intentional murder." 913 S.W.2d at 555. However,
Lawton is inapplicable because its holding concerned felony murder.
Furthermore, the dicta which the state court cites is also
inapplicable because it quotes Texas Penal Statute 7.02(a)(2) ("A
person is criminally responsible for an offense committed by the
conduct of another if:...(2) acting with intent to promote or
assist the commission of the offense, he solicits, encourages,
directs, aids, or attempts to aid the other person to commit the
offense..."), not section 7.02(b), which is in dispute.

factual finding as to the defendant's culpability has been made.
If it has, the finding must be presumed correct." Id. at 387-88.
The necessary finding of intent under Enmund may be made by a trial
court or an appellate court. Id. at 389.
The findings of the Texas Court of Criminal Appeals are
constitutionally sufficient under Enmund and Tison. Pursuant to
Clark's argument that there was insufficient evidence to support a
conviction of capital murder, the court found that "a rational
trier of fact could have found the essential elements of murder in
the course of aggravated sexual assault." The court pointed to the
DNA evidence linking Clark to the sexual assault and blood spatter
evidence linking Clark to the murder and then concluded that the
evidence was sufficient to prove murder during a sexual assault.
On a related issue of future dangerousness, the court further found
that Clark assaulted and executed Crews. ("They [Clark and Brown]
made the girl strip and apparently tied her hands with her own bra
and then appellant [Clark] brutally sexually assaulted her--both
vaginally and anally. Appellant then put the shotgun to her head
and executed her.") These findings show specific intent under
Enmund or at the very least, major participation in the felony
committed with reckless indifference to human life under Tison.
458 U.S. at 797; 481 U.S. at 158. Thus, under the principles of
Bullock, there has been a "determination from [Texas'] own courts
of the factual question whether [Clark] killed, attempted to kill,

intended to kill, or intended that the lethal force would be used."
474 U.S. at 392. See also Stewart v. Collins, 978 F.2d 199 (5th
Cir. 1992)(upholding a capital murder conviction and sentence on
the basis of the jury verdict and answers to the special issues
along with findings of the Court of Criminal Appeals). Clark has
not made a substantial showing of a denial of a constitutional
right to be free from cruel and unusual punishment under the Eighth
and Fourteenth Amendments, and no COA will issue.
c) Jury instruction due process violation claim.
Clark argues that the trial court's failure to instruct the
jury that he would not be eligible for parole for thirty-five years
if sentenced to life imprisonment violated Simmons v. South
Carolina, 512 U.S. 154 (1994). However, Clark's claim is barred
under the non-retroactivity limitation in Teague v. Lane, 489 U.S.
233 (1989). As a threshold matter, a state prisoner must
demonstrate that the rule of which he seeks benefit is not "new."
O'Dell v. Netherland, 521 U.S. 151, 156 (1997). A rule is new if
it "breaks new ground," "imposes a new obligation on the States or
the Federal Government," or was not "dictated by precedent existing
at the time the defendant's conviction became final." Graham v.
Collins, 506 U.S. 461, 467 (1993)(citing Teague, 489 U.S. at 301).
Clark urges us to adopt a rule that would allow him to present
evidence concerning his thirty-five year ineligibility for parole.
This rule is certainly new as Simmons was based on lifetime parole

ineligibility. 512 U.S. at 169. See also Ramdass v. Angelone, 120
S.Ct. 2113, 2121 (2000)("Simmons applies only to instances where,
as a legal matter, there is no possibility of parole if the jury
decides the appropriate sentence is life in prison."). Because
this new rule fails to meet the narrow exceptions of Teague, namely
rules forbidding punishment of certain primary conduct or watershed
rules of criminal procedure, it may not be applied retroactively to
Clark's trial. See also Allridge v. Scott, 41 F.3d 213, 222 n.11
(5th Cir. 1994)("Specifically, if we were to conclude...that due
process entitles a capital defendant to introduce evidence of
parole ineligibility whenever the state argues the defendant is a
future danger, regardless of whether the state statutorily provides
for parole ineligibility, such a conclusion certainly would
constitute a `new rule' and therefore would be barred under
Teague."). Accordingly, Clark has failed to make a substantial
showing of the denial of constitutional right of due process on
this claim, and no COA will issue.
d) Ineffective assistance of counsel claims.
To prevail on an ineffective assistance of counsel claim,
Clark must show that his counsel's performance was deficient and
that the deficiency prejudiced his defense. See Strickland v.
Washington, 466 U.S. 668 (1984). Counsel's performance is
deficient when the representation falls below an objective standard
of reasonableness. See id. and Davis v. Johnson, 158 F.3d 806, 812

(5th Cir. 1998). In assessing counsel's performance, we must make
every effort "to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and
to evaluate the conduct from counsel's perspective at the time."
Strickland, 466 U.S. at 689. There is a strong presumption that
counsel's conduct falls within the wide range of objectively
reasonable conduct. See id.
To establish that the counsel's deficiency prejudiced his
defense, Clark "must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. "A reasonable
probability is a probability sufficient to undermine confidence in
the outcome." Id.
1. Ineffective assistance of counsel on direct appeal.4
Clark argues that he was denied his right to counsel in
preparing a motion for rehearing to the Court of Criminal Appeals
and a writ of certiorari to the United States Supreme Court.5 This
4This Circuit's decision in Jackson v. Johnson, 217 F.3d 360 (5th
Cir. 2000), forecloses the retroactivity issue presented by Teague
v Lane, which prevented granting habeas relief based on a rule
announced after a defendant's conviction. The Fifth Circuit found
that a claim of ineffective assistance of counsel based on a
failure to file for rehearing was a narrow exception to Teague.
217 F.3d at 364.
5Because there is no constitutional right to counsel for
discretionary appeals, we need not analyze this claim under

argument is unsupported as the Supreme Court has not extended the
right of counsel to discretionary review. Due process does require
the appointment of effective counsel for a criminal appellant
pursuing a first appeal of right. Evitts v. Lucey, 469 U.S. 387,
392 (1985). However, Ross v. Moffitt, 417 U.S. 600, 610 (1974),
held that it was constitutional under due process to not provide
counsel on discretionary appeal.6 The Texas Constitution provides,
"The appeal of all cases in which the death penalty has been
assessed shall be to the Court of Criminal Appeals." Tex. Const.
Code Ann. Art. 5, 5 (West 2000). Therefore, the right of appeal
is to the Court of Criminal Appeals, and not for a petition for
rehearing to that court or a petition to the United States Supreme
Court. See Ayala v. State, 633 S.W.2d 526, 528 (Tex. Crim. App.
1982)(holding that "[i]ndigent appellants are not deprived of the
effective assistance of counsel if appointed counsel fail to file
a petition for discretionary review of a court of appeals'
decision.")(citing Wainwright v. Torna, 455 U.S. 586 (1982)). The
Supreme Court itself has defined its review as discretionary and
found the argument that a state should provide counsel to one
6"The defendant needs an attorney on appeal not as a shield to
protect him against being `haled into court' by the State and
stripped of his presumption of innocence, but rather as a sword to
upset the prior determination of guilt." 417 U.S. at 610-11.
However, in Blankenship v. Johnson, 118 F.3d 312, 317 (5th Cir.
1997), the Fifth Circuit found a right to counsel on state-
requested discretionary review.

petitioning the Court to be "unsupported by either reason or
authority." Ross v. Moffitt, 417 U.S. at 616-17. Furthermore, the
Fifth Circuit has pointedly stated, "[T]here can be no question
that the granting of a motion for rehearing lies entirely within
the discretion of a court of appeals. Rehearing at that point is
by no means an appeal of right." Jackson, 217 F.3d at 365. Also,
a Texas court has held that because there is no right to counsel
for a discretionary review, the appellate counsel has no duty to
even advise the appellant about the merits of the review. Ex parte
Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). Accordingly,
Clark has failed to make a substantial showing of the denial of a
constitutional right on this claim as there is no constitutional
right, and no COA will issue.
2. Ineffective assistance of counsel at punishment phase of trial.
Clark argues that he was denied effective assistance of
counsel at the punishment phase of his trial when appointed counsel
failed to present any available evidence at the punishment phase.
The defendant bears the burden of showing by a preponderance of
evidence that he was deprived of the right of effective counsel.
Martin v. Maggio, 711 F.2d 1273, 1279 (5th Cir. 1983). "Failure to
meet either the deficient performance prong or the prejudice prong
will defeat a claim for ineffective assistance of counsel." United
States v. Stewart, 207 F.3d 750 (5th Cir. 2000).
Clark fails to meet his burden of proof for both prongs of the

test. First he fails to show deficient performance. Clark argues
that it was an unsound trial strategy to not call subpoenaed
witnesses, but he does not explain who was subpoenaed and the
importance of their testimony. The record only indicates that
Clark had an extensive criminal record; thus, it appears counsel
made a "strategy choice...well within the range of professionally
reasonable judgments." Strickland, 466 U.S. at 699. See Jones v.
Thigpen, 788 F.2d 1101 (5th Cir. 1986)(finding failure to present
mitigating factors of youth and mental retardation was deficient
performance). Furthermore, Clark himself testified that he made
the decision not to call any witnesses after talking with his
attorneys the day before. "`[M]eaningful discussion with one's
client' is one of the `cornerstones of effective assistance of
counsel.'" Martin, 711 F.2d at 1280 (citing Gaines v. Hopper, 575
F.2d 1147, 1149-50 (5th Cir. 1978)). Secondly, Clark attempts to
argue that a failure to put on evidence constitutes a constructive
denial of counsel and thus prejudice is presumed. However, there
is a "strong presumption of reliability" attached to judicial
proceedings. Roe v. Flores-Ortega, 120 S. Ct. 1029, 1037 (2000).
Unlike in Flores-Ortega, where counsel neglected to file a notice
of appeal, Clark's counsel subpoenaed witnesses in preparation, but
ultimately allowed Clark to decide whether to present them. These
actions do not constitute a denial of counsel, actual or
constructive. Even if we assume Clark's counsel's performance was

defective, Clark has failed "to show the existence of evidence of
sufficient quality and force to raise a reasonable probability
that, had it been presented to the jury, a life sentence would have
resulted." Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir.
1992). Accordingly, Clark has failed to make a substantial showing
of the denial of a constitutional right on this claim, and no COA
will issue.
e) Evidentiary hearing claim.
AEDPA governs requests for evidentiary hearing under 28 U.S.C.
2254(e)(2).7 After that standard is met, the district court's
denial is reviewed for abuse of discretion. Murphy v. Johnson, 205
F.3d 809, 815 (5th Cir. 2000). Assuming Clark meets the AEDPA
standard because he was denied a hearing in state court, see id. at
815, nevertheless, the district court did not abuse its discretion
in failing to grant a hearing. Our resolution of the issues
demonstrates that Clark has failed to show a significant factual
7"If the applicant has failed to develop the factual basis of a
claim in State court proceedings, the court shall not hold an
evidentiary hearing on the claim unless the applicant shows that
(A) the claim relies on
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish
by clear and convincing evidence that but for constitutional error,
no reasonable factfinder would have found the applicant guilty of
the underlying offense."

dispute on his Brady claim that could be addressed by a hearing,
and failed to show how his claim of ineffective assistance of
counsel would be advanced by a hearing. No COA will issue on the
refusal of the district court to hold an evidentiary hearing.
For the foregoing reasons, we deny Clark's request for a COA
on all issues.
Application DENIED.

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