                         REVISED DECEMBER 16, 1998

                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit

                     ___________________________

                             No. 98-20504
                     ___________________________

                            WILLIS JAY BARNES,

                                                                 Applicant,

                                    VERSUS


         GARY L. JOHNSON, Director, Texas Department of
            Criminal Justice, Institutional Division,

                                                                Respondent.

       ___________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
        ___________________________________________________
                         November 9, 1998

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

     Willis   Jay   Barnes,    a    Texas    death   row   inmate,   seeks   a

certificate of appealability (“COA”) to challenge the district

court’s denial of his petition for writ of habeas corpus.            For the

reasons that follow, we deny Barnes’s application for a COA.

                    I.    Facts & Procedural History

     The district court below provided an in-depth and complete

description of the facts.      We recount the facts only as necessary

for our analysis.

                                   A. Facts

     The body of eighty-four-year-old Helen Greb was found in her
home in Houston, Texas on February 14, 1988.    Her nude body was

badly bruised and she had been sexually assaulted, probably with

a bottle.    Her ribs and back were broken and she had been

manually strangled.    The cause of death was “asphyxia due to

manual strangulation and compression of the chest.”

     A kitchen window in Ms. Greb’s house had been pried open and

the telephone wire outside the house had been cut.    A second

window at the back of the house had been opened and the screen

pried loose.    There was a footprint from a tennis shoe in the

kitchen sink below the kitchen window.    Police determined that a

television set and two firearms were missing from the house.

     The Houston Police located these missing items in the

possession of Robert Glenn “Pokey” Davis, a known dealer in

stolen property and a police informant.    Davis told the police

that he had received the stolen items from Willis Jay Barnes.      On

February 17, 1998, an arrest warrant for Barnes was issued

charging him with theft by receiving, a misdemeanor offense.

Barnes was arrested the same day by Sergeant David E. Calhoun of

the City of Houston Police Department, the primary investigator

of Ms. Greb’s murder.    Calhoun and his partner, Sergeant Robert

Parish, handcuffed Barnes and read him his Miranda rights.

Barnes indicated that he understood his rights and had no

questions.    Barnes was told only that he was under arrest for

possession of stolen property, not that he was a capital murder

suspect.

     At approximately 6 pm, Calhoun brought Barnes into a police

                                  2
interview room, where he was again read his Miranda rights.          At

the pretrial suppression hearing, Barnes testified that Calhoun

initially told him that a woman was dead and Calhoun asked

whether Barnes knew anything about her.       Barnes also testified

that Calhoun stated that police had recovered skin fragments from

the dead woman’s fingernails and had taken a shoe print from the

home that would match Barnes’s shoes.       Calhoun, however, did not

directly tell Barnes that he was a murder suspect.

     At approximately 8 pm, after two hours of interrogation,

Barnes agreed to give a written statement (the “first statement”)

stating that he had entered Ms. Greb’s house through an open

door, had found the house already ransacked, and had stolen the

television and the two firearms.       The statement was made on a

“statement of a person in custody” form, which includes Miranda

warnings on the top of every page.       Calhoun reviewed these

warnings with Barnes, and Barnes placed his initials next to each

of the warnings.   Barnes waived his Miranda rights and initialed

this waiver on the statement form.

     After the first statement was signed, around 10 pm, Sergeant

J.W. Belk, who had witnessed the signing, remained alone with

Barnes in the interview room.   Belk had participated in a 1984

investigation of Barnes for burglary involving the aggravated

sexual assault of an elderly woman.       That investigation had

resulted in Barnes pleading guilty to the burglary of four homes.

Barnes served approximately three years of his thirty-year



                                   3
sentence and was released from prison in October 1987.

     At approximately 10:30 pm, Sergeant Parish entered the

interview room to get permission to search Barnes’s car.       Barnes

gave this permission.   In addition, upon request, Barnes removed

his shirt.   He had scratches on his chest, on both arms, and

under his left eye.   The police took Barnes’s clothes and

provided him with a trusty uniform.       They also took Barnes’s

shoes as evidence.    Barnes was not given socks or shoes because

the police were unable to find any.       Calhoun testified that the

next morning he brought in a pair of his own shoes and a pair of

socks for Barnes.

     Around midnight, Calhoun showed Barnes one of the stolen

firearms and a picture of the television set.       He asked Barnes if

he would give a written statement identifying the items.       Barnes

agreed to give such a statement.       Calhoun again reviewed the

Miranda warnings with Barnes, who stated that he understood them.

Calhoun began to type the statement (the “second statement”) at

approximately half past midnight.       At approximately 1 am, Barnes

read the statement, made and initialed some changes, and signed

the statement in the presence of Belk and Parish.       In this

statement, Barnes admitted entering the house and stealing the

firearms and television.   However, he denied killing Greb.

     After signing the second statement, Barnes was taken to the

city jail.   He was placed in a holding cell and then talked to a

bailbondsman.   Barnes slept from approximately 2:30 am to 4:30

am, when he was awakened for breakfast.       After breakfast, he

                                   4
slept from approximately 5:10 am to 8:00 am.   Barnes testified

that he slept for a total of approximately five hours.

      At approximately 8:30 am, February 18, 1988, Sergeant R.L.

Doyle and Sergeant Sharon Durham brought Barnes to court.    Barnes

was dressed in a jail uniform and was still barefoot.    Barnes was

brought before Judge Michael McSpadden.   Barnes was informed that

he was charged with the offense of “burglary of a habitation with

intent to commit murder,” a first-degree felony charge.    Judge

McSpadden also informed Barnes of his Miranda rights.     As he

stated each right, Judge McSpadden asked Barnes if he understood

the right, and Barnes stated “Yes.”

      Judge McSpadden also questioned Barnes about his education.

Barnes stated that he had received his G.E.D. and had twenty-nine

hours of college credit.   He also stated that he had failed high

school English, but had taken college English and had received a

D.   Judge McSpadden noted Barnes’s answers and observed that

Barnes appeared to understand everything stated to him.    After

the hearing before Judge McSpadden, Barnes was returned to the

city jail, where he was given shoes and socks.   During both the

journey to court and the return trip, Barnes was briefly outside

barefoot in rainy and chilly weather.

      Beginning at approximately 9:45 am, Calhoun interrogated

Barnes further.   Before commencing interrogation, he read Barnes

his Miranda rights.   Barnes stated that he had already been given

his rights by Judge McSpadden and that he understood them.

During this interrogation, Barnes again told Calhoun that he had

                                 5
stolen the television and firearms, but continued to deny seeing

anyone in the house.   At approximately 11:45 am, Calhoun ceased

the interrogation and left the interview room.

     A few minutes later, Sergeant Belk stopped by the interview

room and asked Barnes if he needed anything.    Belk then

accompanied Barnes to the restroom.    While returning from the

restroom, Barnes indicated that he wanted to talk to Belk.      Back

inside the interview room, Barnes brought out a copy of the

written Miranda warnings from Judge McSpadden and read out loud

the charge that was listed there, “burglary of a habitation with

intent to commit murder.”    Barnes then told Belk, “I didn’t

intend to commit a murder.    It was an accident.”

     Barnes explained that he had entered the house through the

kitchen window, intending to take property and money.    Greb had

confronted him with mace and a rifle.    She sprayed mace at him

and they struggled.    Barnes overcame Greb and left her lying on

the floor.   Barnes stated that after he had grabbed some cash,

the television, and the firearms, he realized that Greb was not

breathing and he attempted “mouth to mouth resperation.”    When

this was unsuccessful, he covered her body and fled the scene.

     Belk requested that Barnes repeat the events that took place

so that Belk could type another statement.    Belk again repeated

Barnes’s Miranda rights.     Barnes again stated that he waived

them.   Belk began typing this statement (the “third statement”)

just after noon.   When he finished, Barnes made and initialed two

minor changes and then signed the statement.    At the pretrial

                                   6
suppression hearing, Barnes testified that his interrogators did

not promise anything in exchange for his statement and did not

force, coerce, or compel Barnes to make the statement.   After

Barnes made his third written statement, Calhoun obtained a

warrant for capital murder.

     Around 2 pm, Belk asked Barnes whether he would be willing

to repeat his third statement on videotape.    Barnes stated that

he would.   Barnes, Belk, and the camera operator were present in

the videotape interview room when Barnes gave his videotaped

statement (the “fourth statement”).   Belk began by reading Barnes

questions from a video statement checklist form.   These questions

included Barnes’s Miranda rights and whether he understood and

waived each right.   With one exception that is discussed in-depth

in Section II.B, Barnes stated that he understood and waived each

right.   Barnes then gave a statement on videotape that was

consistent with his third written statement.

     On June 22, 1988, Barnes was indicted for capital murder.

Barnes’s trial counsel moved that all of Barnes’s statements be

suppressed because they were not voluntary and were obtained in

violation of Barnes’s right to counsel.   The trial court

conducted a four-day evidentiary hearing on the motion to

suppress, during which Barnes, Belk, Calhoun, Doyle, and Judge

McSpadden all testified.

     Following this four-day hearing, the trial court entered

extensive findings of fact and conclusions of law, holding that

Barnes’s statements were voluntary.   The court found that Barnes

                                 7
had the mental capacity and education needed to understand the

warnings and that there was no evidence of police misconduct

during the interrogation.   The court found that “all waivers of

constitutional rights involved in each and every statement” were

voluntarily and intelligently made.   Thus, the trial court

admitted all the written statements and the fourth, videotaped

statement.

                       B. Procedural History

     A jury convicted Willis Jay Barnes of capital murder on

March 16, 1989.   A week later, he was sentenced to death.    His

conviction and sentence were upheld on direct appeal by the Texas

Court of Criminal Appeals in September 1993.    Barnes v. State,

No. 70,858, slip op. (Tex. Crim. App. Sept. 22, 1993).   The same

court denied Barnes’s motion for a rehearing in November of 1993.

In April 1994, the United States Supreme Court denied Barnes’s

petition for a writ of certiorari.    Barnes v. Texas, 511 U.S.

1063, 114 S. Ct. 1635, 128 L. Ed. 2d 357 (1994).

     In July 1995, Barnes filed an application for a post-

conviction writ of habeas corpus in state court.   The district

court conducted a limited evidentiary hearing on Barnes’s

allegation of ineffective assistance of counsel.   The court

entered findings of fact and conclusions of law and transmitted

the post-conviction record to the Texas Court of Criminal

Appeals.   In February 1996, the Texas Court of Criminal Appeals

entered an order stating that the trial court’s findings of fact

and conclusions of law were “supported by the record and upon

                                 8
such basis the relief sought by the petitioner is denied.”     Ex

Parte Barnes, Application No. 30,357-01 (Tex. Crim. App. Feb. 14,

1996).

     In April 1997, Barnes timely filed a petition for writ of

habeas corpus in federal district court.   Respondent answered and

filed a motion for summary judgment.    The district court granted

Respondent’s motion for summary judgment and entered a Final

Judgment denying Barnes’s petition for a writ of habeas corpus

and denying a COA.   Barnes v. Johnson, No. H-97-400 (S. D. Tex.

Apr. 30, 1998) (order denying writ of habeas corpus).    Barnes now

challenges the district court’s denial of a COA.   He requests

that this Court grant a COA and direct the issuance of a writ of

habeas corpus.

                             C. AEDPA

     The standards by which we determine whether to grant a COA

are provided by the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), 28 U.S.C.A. §§ 2241-55 (Supp. 1998).   Under

the regime set forth by the AEDPA, Barnes is required to obtain a

COA from either the district court or this Court in order to

proceed with an appeal.   28 U.S.C.A. § 2253(c)(1).   To obtain a

COA, a petitioner must make a substantial showing of the denial

of a constitutional right.   28 U.S.C.A. § 2253(c)(2).

     Barnes claims that the third written statement and the

fourth videotaped statement were not voluntary.    He argues that

their admission at his trial violated his constitutional rights

to counsel and to remain silent under the Fifth, Sixth, and

                                 9
Fourteenth Amendments.

     The voluntariness of a confession is ultimately a legal

determination.   See Miller v. Fenton, 474 U.S. 104, 112, 106 S.

Ct. 445, 450-51, 88 L. Ed. 2d 405 (1986); Muniz v. Johnson, 132

F.3d 214, 219 (5th Cir.), cert. denied, 118 S. Ct. 1793 (1998).

However, the determination may also involve subsidiary factual

determinations and mixed issues of law and fact.     Muniz, 132 F.3d

at 219.   Under the standards set forth by the AEDPA, for the

issues that are purely legal or mixed law and facts, this Court

must respect a state court’s determination of voluntariness so

long as it was not “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.A. §

2254(d)(1); Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir.

1996), cert. denied, 117 S. Ct. 1114 (1997); see also Mata v.

Johnson, 99 F.3d 1261, 1267 (5th Cir. 1996) (equating this form

of review with the “clearly erroneous” standard).     Purely factual

subsidiary determinations are presumed to be correct and are

overturned only if they were “based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.”     28 U.S.C.A. § 2254(d)(2).   When

challenging a state court’s factual determinations, a petitioner

must rebut this presumption of correctness by “clear and

convincing evidence.”    28 U.S.C.A. § 2254(e)(1).

                        II.   Applicant’s Claims

     Barnes argues that his confession--through his third written

                                   10
statement and fourth videotaped statement--was not voluntary and

that he was coerced into waiving his constitutional rights.       He

argues that the trial court thus erred in admitting the third and

fourth statements at his trial.    He provides six specific

allegations of police “physical and mental coercion, fraud and

deceit” to support his argument.       Barnes alleges that: (1) the

police deliberately and fraudulently misled him as to the charges

that they intended to press; (2) the police did not cease

interrogation after Barnes invoked his right to remain silent;

(3) the police coerced him by interrogating him for ten hours and

holding him in custody for over nineteen hours; (4) the police

left Barnes without footwear for an extended period of time,

during which he was outside at points; (5) the police prevented

Barnes from sleeping for more than two or three hours at a time;

and (6) the police’s treatment of Barnes, when viewed in its

entirety, was fundamentally unfair.       We review these arguments to

determine whether the trial court’s decision to admit the third

and fourth statements was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court . . . .”       28 U.S.C.A. §

2254(d)(1).

              A. The Intentionally Fraudulent Charge

     It is undisputed that for most, if not all, of Barnes’s

interrogation, he was not specifically told that he was a suspect




                                  11
for capital murder.1   In addition, when he was brought before

Judge McSpadden, Barnes was told that he was being charged with

“burglary of a habitation with intent to commit murder,” a charge

that apparently does not technically exist.     Barnes alleges that

these two aspects of his interrogation--he was not told that he

was a capital murder suspect and he was brought before Judge

McSpadden on a “made up” charge--render his confession

involuntary.   We do not agree.

     While Barnes was not directly informed that he was a capital

murder suspect, from the beginning of his interrogation Barnes

was aware that a woman had died in the house he was alleged to

have burglarized.   Sergeant Calhoun mentioned Ms. Greb’s murder

shortly after Barnes was arrested.     Moreover, Barnes himself

stated that he had seen on the television news that the woman

living in the house he had burglarized had been killed.     In

Barnes’s first statement, he mentioned the death and attempted to

divert attention from himself by mentioning someone that he had

seen next door, stating “I think that this man had something to

do with the old womans death.”    Thus, it is clear that Barnes

understood from the start that the police were investigating Ms.

Greb’s murder, not just theft of property.     He was also well

aware that he was suspected of committing the murder.

     A suspect’s waiver of Miranda rights is not invalid merely



     1
        We assume for our purposes that this was an affirmative
police decision made in an attempt to get Barnes to implicate
himself in the murder.

                                  12
because police interrogators did not advise him of the subject

matter of the upcoming interrogation.    Colorado v. Spring, 479

U.S. 564, 574, 107 S. Ct. 851, 857, 93 L. Ed. 2d 954 (1987).

Similarly, the waiver is not invalid simply because the suspect

did not have “a full and complete appreciation of all the

consequences flowing from the nature and quality of the evidence

in the case.”   Oregon v. Elstad, 470 U.S. 298, 317, 105 S. Ct.

1285, 1297, 84 L. Ed. 2d 222 (1985).    In light of Barnes’s clear

understanding that the police were investigating a murder, the

police’s decision not to inform Barnes specifically that he was a

capital murder suspect does not render his third and fourth

statements involuntary.

     Barnes’s further argument that he was coerced and deceived

by the abnormal charge of “burglary of a habitation with the

intent to commit murder” is equally without merit.   Section 30.02

of the Texas Penal Code defines burglary of a habitation as

follows: “(A) A person commits an offense if, without the

effective consent of the owner, he: (1) enters a habitation . . .

with intent to commit a felony or theft.”   Tex. Penal Code Ann. §

30.02(a)(1) (Vernon 1997).    Thus, in identifying Barnes’s charge,

the police added a superfluous phrase--”with the intent to commit

murder”--to the crime of burglary of a habitation.   All this

phrase served to do, however, was to identify the particular

felony that the police intended to use for the requisite “commit

a felony or theft” element.   The addition of this phrase cannot

be said to have worked a deception upon Barnes.   Indeed, the

                                 13
inclusion of this phrase goes directly against Barnes’s claim

that he was deceived and coerced into confessing the murder

because he was not informed that he was a capital murder suspect.

     Finally, Barnes alleges that he was deceived and coerced by

not being informed that he could receive the death penalty for

the Greb’s murder.   There is no Supreme Court law requiring that

a suspect be informed that he is suspected of an offense that

could result in the death penalty.   Indeed, the Supreme Court’s

decisions in Colorado v. Spring, 479 U.S. at 574, 107 S. Ct. at

857, and Oregon v. Elstad, 470 U.S. at 317, 105 S. Ct. at 1297,

indicate just the opposite--a suspect need not be told that a

statement or confession may expose him to the death penalty.

     In sum, Barnes’s claims of deceit and an “intentionally

fraudulent charge” provide no support to his claim that the state

court’s determination of voluntariness was either contrary to, or

an unreasonable application of, clearly established federal law,

or, alternatively, an unreasonable determination of the facts.

         B. The Fourth Amendment and Assertion of Rights

     Barnes argues that prior to the videotaping of his fourth

statement, he invoked his right to remain silent.    Therefore, any

statements made after this point could not have been admitted at

trial without violating his constitutional rights.   The

transcript of Sergeant Belk’s exchange with Barnes, however,

makes it clear that at no point did Barnes unambiguously invoke

his right to remain silent.   Therefore, Belk did not violate

Barnes’s Fifth Amendment rights by continuing the videotaped

                                14
statement and the trial court did not err in admitting it.

     The alleged invocation was recorded on videotape.   The

transcript of that incident is as follows:

     Q: I’m Sergeant J.W. Belk.
     A: I’m Willis Jay Barnes.
     Q: Okay, Willis. That’s B-A-R-N-E-S.
     A: B-A-R-N-E-S.
     Q: Okay. I’m going to read you your warnings, and if at any
     point you don’t understand, stop me and we will go through
     it.
     A: Okay.
     Q: You have the right to remain silent and not make any
     statement at all and that statement you make may be used
     against you and probably will be used against you at trial.
     Do you understand that right?
     A: I understand it.
     Q: Do you waive this right?
     A: No.
     Q: Okay, do you understand what “waive” means?
     A: It mean, uh, do I waive rights for you to do it, right?
     Q: Well, it’s explained . . . . you have the right to remain
     silent . . . .
     A: Right.
     Q: And you can remain silent and not say anything at all, or
     you can waive that right . . . .
     A: Right, that’s what I’m saying. I waive what I’m saying,
     it’s okay, what I’m saying is I’m giving you the right to
     put me that . . . to ask me these questions. All right?
     Q: Okay, and so you’re waiving your right to remain silent
     and you are talking.
     A: I am talking.
     Q: Okay, so you understand that right . . .
     A: I understand that right.
     Q: And you are waiving that right?
     A: Right.
     Q: Okay.


After this exchange, Belk continued videotaping and Barnes gave

his fourth statement, which was consistent with his third written

statement.

     The question raised by this dialogue is whether Belk should

have immediately ceased interrogation after Barnes replied “No.”


                               15
Barnes argues that by continuing beyond this apparent invocation,

Belk denied Barnes his Fifth Amendment right to remain silent.

     The Supreme Court has held that if a suspect “indicates in

any manner, at any time prior to or during questioning, that he

wishes to remain silent, the interrogation must cease.”     Miranda

v. Arizona, 384 U.S. 436, 474-75, 86 S. Ct. 1602, 1627, 16 L. Ed.

2d 694 (1966).   In this case, it was not clear that the suspect

wished to remain silent.    Indeed, considering Barnes’s previous

statements and the fact that Barnes himself had initiated this

particular discussion, Belk had every reason to believe that

Barnes wished to talk.

     The Supreme Court’s most recent exposition on ambiguous

invocations was in the context of whether a suspect invoked his

Sixth Amendment right to counsel.      In Davis v. United States, 512

U.S. 452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362 (1994),

the Court held that the determination of whether a suspect

invoked his right to counsel is an objective one.     The question

is whether the suspect “articulate[d] his desire to have counsel

present sufficiently clearly that a reasonable police officer in

the circumstances would understand the statement to be a request

for an attorney.”   Id.    Other circuits have held that this

“objective inquiry” into ambiguity is applicable to invocations

of the right to remain silent.2


     2
        See e.g. Medina v. Singletary, 59 F.3d 1095, 1100 (11th
Cir. 1995), cert. denied, 116 S. Ct. 2505 (1996) (applying Davis’s
objective inquiry to determine whether suspect’s invocation of the
right to remain silent was ambiguous or equivocal); United States

                                  16
     This circuit has not yet determined whether the Davis

analysis is applicable to invocations of the right to remain

silent.    However, because Section 2254 is specifically focused on

federal law as determined by the Supreme Court, we need not

decide that issue here.    28 U.S.C.A. § 2254(d)(1).   We only need

to decide whether the state court’s decision to admit the fourth

statement was contrary to clear Supreme Court law.     In light of

the language and logic of the Supreme Court’s decision in Davis,

we cannot say that it was.

     The majority opinion in Davis held that when faced with an

ambiguous invocation of a right, an interrogator was not required

to ask clarifying questions.      Davis, 512 U.S. at 461, 114 S. Ct.

at 2356.   Nevertheless, the Court noted that it will “often be

good police practice for the interviewing officers” to ask

clarifying questions.     Id.   Thus, in the present case, Belk went

beyond what the Supreme Court required and followed what the

Court described as “good police practice.”     He was presented with

an ambiguous and surprising apparent invocation.     He asked a few



v. Banks, 78 F.3d 1190, 1197 (7th Cir.) (same), vacated on other
grounds, 117 S. Ct. 478 (1996); c.f. United States v. Ramirez, 79
F.3d 298, 305 (2d Cir.), cert. denied, 117 S. Ct. 140 (1996)
(assuming, arguendo, that Davis applies to invocations of the right
to remain silent, but not holding that it definitely does); see
also United States v. Johnson, 56 F.3d 947, 955 (8th Cir. 1995)
(citing Davis while determining whether right to remain silent had
been invoked).    The Texas Court of Criminal Appeals has also
applied the Davis analysis to invocations of the right to remain
silent. Dowthitt v. Texas, 931 S.W.2d 244, 257 (Tex. Crim. App.
1996) (citing Davis and holding that statement, “I can’t say more
than that. I need to rest.” was not an unambiguous invocation of
the right to remain silent).

                                   17
explanatory, noncoercive questions that revealed that Barnes did

not wish to invoke his right to remain silent.

     In light of Davis and this clear record--in which an

ambiguous statement was made and noncoercive clarifying questions

revealed no intent to invoke the right to remain silent--the

trial court’s admission of the fourth, videotaped statement is

not contrary to “clearly established Federal law, as determined

by the Supreme Court . . . .”   28 U.S.C.A. § 2254(d)(1).3

                   C. Barnes’s Other Arguments

     Barnes’s additional arguments are heavily factual in nature.

Barnes argues that his statements were not voluntary because he

was coerced by the police.   He points to the length of his

interrogation, his lack of footwear, and the fact that he was

prevented from sleeping for more than three hours at a time.

     The state court made factual determinations that these

police actions were not coercive and therefore did not render the

statements involuntary.   These state court factual determinations

are entitled to a presumption of correctness.    28 U.S.C.A. §



     3
          Furthermore, as noted by the district court, even had
there been error in admitting the fourth, videotaped statement,
such error would probably have been harmless.       See Arizona v.
Fulminante, 499 U.S. 279, 310-11, 111 S. Ct. 1246, 1265-66, 113 L.
Ed. 2d 302 (1991) (holding that the admission of an involuntary
confession is subject to harmless error analysis). The fourth,
videotaped statement is cumulative of the third statement.
Therefore, had it been error to admit the fourth statement--which
it was not--such error would probably have been harmless under the
particular circumstances of this case.       See United States v.
Ramirez, 963 F.2d 693, 698 (5th Cir.), cert. denied, 113 S. Ct. 388
(1992); Boles v. Foltz, 816 F.2d 1132, 1135-36 (6th Cir.), cert.
denied, 108 S. Ct. 167 (1987).

                                18
2254(d)-(e).   As the district court noted in its meticulous

analysis of the state court proceedings, the state court record

does not support Barnes’s claims that these police actions

rendered his statements involuntary.

   D. Totality of the Circumstances and Fundamental Unfairness

     In light of our rulings on the previous issues, it is clear

that under the totality of the circumstances, the admission of

Barnes’s third and fourth statements was not fundamentally unfair

and did not violate Barnes’s constitutional rights.

                         III. Conclusion

     Because Willis Jay Barnes has failed to make a substantial

showing of the denial of a constitutional right, his application

for a COA is DENIED.




                               19
