                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT


                               No. 01-10708


                           GREGORY VAN ALSTYNE,

                                                   Petitioner-Appellant,

                                    versus

 JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                     INSTITUTIONAL DIVISION,

                                             Respondent-Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                           (2:97-CV-454)
_________________________________________________________________
                           April 8, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     In opposition to the death sentence imposed in Texas state

court, Gregory Van Alstyne seeks a certificate of appealability

(COA)    from   the   denial   of    federal   habeas   relief,   claiming

ineffective assistance of counsel (IAC) based on the assertions

that, for the punishment phase, his trial counsel did not: request

psychiatric assistance; secure the attendance of a witness (Van




     *
      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this opinion should not be published and is not precedent except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.
Alstyne’s mother); and file a continuance motion (required to be

written    and      sworn)    after   that        witness    did   not   appear,    thus

precluding appellate review of the continuance-denial. COA DENIED.

                                             I.

       In April 1990, Van Alstyne and an accomplice ordered food to

be delivered to the apartment of an acquaintance; they requested

that the delivery man bring sufficient cash to change a $50 bill;

and they were informed he would not carry that much cash.                      When the

man arrived with the food, Van Alstyne attacked him; ordered his

accomplice to open the victim’s vehicle; and threw him into the

back seat.

       The accomplice drove the vehicle to a deserted field, while

Van Alstyne continued to beat and stab the victim.                       He pleaded for

his life until he lost consciousness.                       Van Alstyne crushed the

victim’s skull with a stone, and stabbed him in the stomach and

neck.     The victim died from loss of blood.                   Van Alstyne and his

accomplice robbed him of the food and the approximate $20.00 in

cash    that   he    was     carrying.       Van     Alstyne    and   his   accomplice

abandoned      the     victim’s       car;        when   they      returned    to    the

acquaintance’s apartment, Van Alstyne bragged about the murder.

       In 1992, Van Alstyne was convicted of capital murder; based on

the jury’s answers to the special issues, he was sentenced to

death.     On direct appeal, the Texas Court of Criminal Appeals

affirmed the conviction and sentence.                    Van Alstyne v. State, No.



                                             2
71,500 (Tex. Crim. App. 7 June 1995) (unpublished).      No petition

for a writ of certiorari was filed with the Supreme Court of the

United States.

     In 1996, Van Alstyne filed his initial state post-conviction

habeas application.   The state trial court recommended denial.    Ex

Parte Van Alstyne, No. 30,941-B (47th Dist. Ct. for Potter County,

Tex. 9 Apr. 1997) (unpublished).      Relief was denied by the Texas

Court of Criminal Appeals.    Ex Parte Van Alstyne, No. 33-801-01

(Tex. Crim. App. 4 June 1997) (unpublished).

     Van Alstyne filed for federal habeas relief in 1997.       In a

report and recommendation, the magistrate judge recommended denial.

Van Alstyne v. Johnson, No. 2:97-CV-0454 (N.D. Tex. 16 Mar. 2001)

(unpublished) (Van Alstyne-USDC).     Van Alstyne filed objections to

the report and recommendation; by a March 2001 order, the district

court, after an independent review of the record, overruled the

objections, adopted the report and recommendation, and denied

relief.   Id.

     The magistrate judge construed Van Alstyne’s notice of appeal

as a COA request, but recommended denial.    Van Alstyne v. Johnson,

No. 2:97-CV-0454 (N.D. Tex. 5 June 2001) (unpublished).           The

district court adopted the recommendation.     Id.

                                II.

     At issue is whether Van Alstyne is entitled to a COA premised

on his punishment phase IAC claim.      He makes this claim on three

                                 3
independent bases, on his trial counsel’s not:               (1) requesting

psychiatric assistance; (2) securing the attendance of a witness

(his mother); and (3) filing a sworn continuance motion after that

witness   did   not   appear,   precluding     appellate     review   of   the

continuance-denial.

     The Antiterrorism Effective Death Penalty Act (AEDPA) applies,

because Van Alstyne’s federal petition was filed after AEDPA’s

April 1996 effective date.       See Lindh v. Murphy, 521 U.S. 320, 336

(1997).   Under AEDPA, Van Alstyne must be granted a COA in order to

appeal the habeas-denial.       28 U.S.C. § 2253(c)(1)(A).

     A COA may issue only upon “a substantial showing of the denial

of a constitutional right”.      28 U.S.C. § 2253(c)(2).       To meet this

standard, Van Alstyne must show “reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented

were adequate to deserve encouragement to proceed further”.            Slack

v. McDaniel, 529 U.S. 473, 484 (2000) (citation and internal

quotation marks omitted).

     When a claim is denied on the merits, Van Alstyne must

demonstrate “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong”.               Id.

(COA-merits-standard)      For    a   denial   of   relief    on   procedural

grounds, Van Alstyne must show that “jurists of reason would find

it debatable whether the petition states a valid claim of the


                                      4
denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its

procedural      ruling”.   Id.   (emphasis         added)     (COA-procedural-

standard).

       The ruling on whether a COA should issue “must be made by

viewing ... [Van Alstyne]’s arguments through the lens of the

deferential scheme laid out in 28 U.S.C. § 2254(d)”. Barrientes v.

Johnson, 221 F.3d 741, 772 (5th Cir. 2000), cert. dismissed, 531

U.S. 1134 (2001).     Under that scheme, a federal habeas court must

defer to the decision of a state court where it has adjudicated a

claim on the merits, unless the state court’s decision is “contrary

to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States; or ... resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding”.            28 U.S.C. § 2254(d)(1)

& (2).

       A state court decision is “contrary to [] clearly established

Federal law, as determined by the Supreme Court of the United

States .... if the state court arrives at a conclusion opposite to

that reached by th[e] Court on a question of law or if the state

court decides a case differently than th[e] Court has on a set of

materially indistinguishable facts”.          Williams v. Taylor, 529 U.S.

362,   412-13    (2000).   A   state       court   decision    “involve[s]   an


                                       5
unreasonable application of [] clearly established Federal law, as

determined by the Supreme Court of the United States .... if the

state court identifies the correct governing legal principle from

th[e] Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case”.         Id.

     For these questions, as well as whether the state court

decision was based on an unreasonable determination of the facts in

the light of the evidence presented in the state court proceeding,

we must presume the state court’s findings of fact correct unless

that presumption is rebutted by “clear and convincing evidence”.

28 U.S.C. § 2254(e)(1).

     For the COA-merits-standard for each of the three claimed

independent bases for IAC, Van Alstyne must address both parts of

the well-known IAC test:        (1) whether counsel’s performance was

deficient   in    that   it   “fell   below   an   objective   standard   of

reasonableness”; and (2) whether the deficient performance resulted

in prejudice — “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different”.      Strickland v. Washington, 466 U.S. 668, 687-88, 694

(1984).

                                      A.

     At the punishment phase, evidence of future dangerousness (the

second    special    issue)    included    Van     Alstyne’s   having   been

incarcerated for attempted robbery and having been released only


                                      6
seven days before the murder at issue.              Van Alstyne’s counsel

sought to mitigate Van Alstyne’s behavior by stressing mental

problems he experienced, arising out of traumas in his life.

       Concerning     trial   counsel’s     not    requesting      psychiatric

assistance for use in the punishment phase, the state habeas court

found that, prior to trial and by court order, Dr. Shaw conducted

a psychiatric examination of Van Alstyne and concluded he was

mentally competent to stand trial.         (The examination revealed that

Van Alstyne was not suffering from a mental illness or defect, but

that he could be classified as having a mixed personality disorder

with   antisocial     traits.)     The    state   habeas   court   ultimately

concluded:      Van    Alstyne’s   counsel’s      not   requesting    another

psychiatric examination was not deficient performance and not

making such a request did not prejudice Van Alstyne.

       In denying habeas relief on this point, the district court

agreed with the state court that counsel’s performance was not

deficient, and that the decision was sound trial strategy.                Van

Alstyne-USDC, at 10.          The district court also ruled that Van

Alstyne had failed to show prejudice.         Id. at 11.    Accordingly, it

concluded that the state court decision was neither contrary to,

nor an unreasonable application of, federal law and that its

findings of fact were not unreasonable.           Id. at 11-12.




                                     7
1.




  8
     To meet the COA-merits-standard, Van Alstyne contends his

counsel knew, or should have known, that mitigating evidence

regarding an alleged mental illness existed; and that, as a result,

counsel was deficient in not seeking psychiatric assistance.   The

cited evidence is:    (1) records of the Texas Panhandle Mental

Health Authority, dated September 1988, two years prior to the

murder, that relate to Van Alstyne’s two visits to a mental health

facility; and (2) the facts about which his mother would have

testified.

     The mental facility records reflect the following.     On his

first visit, Van Alstyne reported that, while drinking, he became

angry, got into a disagreement with his brother-in-law, and cut

himself; Van Alstyne was discharged; and the facility’s assessment

was that Van Alstyne had no significant mental abnormalities, and

his behavioral symptoms resulted from intoxication.   On his second

visit, Van Alstyne complained that he was afraid of himself and,

the night before, had a compulsion to kill himself; he admitted he

drank heavily almost every night; and he was diagnosed with an

alcohol abuse problem and a generalized anxiety disorder with

probable panic episodes.

     Concerning Van Alstyne’s mother, she stated in a post-trial

affidavit (supporting a new trial motion) that she would have

testified, inter alia, to the following:   (1) Van Alstyne was born

prematurely, with the umbilical cord wrapped around his neck; (2)



                                9
when he was young, he was run over by a vehicle, with a resulting

change in his behavior and personality; (3) he was struck by

lightning and “his mental condition seemed to worsen”; (4) his

school performance was deficient; (5) he was physically abused by

his father; (6) he did not walk until he was two years old and did

not speak clearly until he was four years old; and (7) before he

was 17 years old, he began drinking rice wine, often getting drunk

and into trouble.

     After reviewing the mental health facility records and the

mother’s proposed testimony, as well as the affidavit of Van

Alstyne’s trial counsel, the district court stated:

          [T]he record from the trial and the state
          habeas proceeding establishes that, at the
          most, petitioner’s trial counsel were aware
          prior to trial that petitioner had some
          accidents as a child, was considered a slow
          learner, and had been diagnosed as having an
          alcohol   dependency     problem,   an   anxiety
          disorder evidently brought on by excessive
          drinking,    and   an   antisocial   personality
          disorder. Further, one of petitioner’s trial
          counsel ... has submitted an affidavit in
          which he states that he and his co-counsel ...
          discussed obtaining a psychiatric expert to
          assist the defense at trial, but determined
          the potential harm in having petitioner
          examined exceeded any potential benefit.
          Given the lack of any diagnosis that suggested
          [Van Alstyne] suffered from a mental illness,
          trial counsel’s decision not to seek a
          psychiatric examination that might further
          indicate    petitioner     had   an   antisocial
          personality     disorder    was   a   reasonable
          strategic trial preparation decision.

               Furthermore, the State did not offer any
          psychiatric testimony at the punishment phase

                                10
            of the trial as evidence that petitioner would
            be a future danger to society. Had defense
            counsel   requested   the   assistance  of   a
            psychiatrist, however, they would have run the
            risk that the State would have presented its
            own psychiatric testimony to rebut the
            defense’s evidence.

Van Alsytne-USDC, at 9-10 (internal citation omitted; emphasis

added).     Accordingly, the district court determined that, in the

light of this, it was reasonable trial strategy not to seek

psychiatric assistance as there was no diagnosis of a mental

disorder,    and   any    psychological     examination    could   have   been

potentially more harmful than helpful.

                                       a.

     Van Alstyne claims he satisfies the COA-merits-standard for

this holding, claiming it is erroneous because it represents the

view expressed in two decisions rendered post-trial:               Lagrone v.

State, 942 S.W.2d 602, 610-11 (Tex. Crim. App.) (allowing “trial

courts to order criminal defendants to submit to a state-sponsored

psychiatric    exam      on   future   dangerousness      when   the   defense

introduces, or plans to introduce, its own future dangerousness

expert testimony” (emphasis in original)), cert. denied, 522 U.S.

917 (1997); and Soria v. State, 933 S.W.2d 46, 57-58 (Tex. Crim.

App. 1996) (“when the defendant initiates a psychiatric examination

and based thereon presents psychiatric testimony on the issue of

future dangerousness, the trial court may compel an examination of




                                       11
[the defendant] by an expert of the State’s or court’s choosing”),

cert. denied, 520 U.S. 1253 (1997).

     The   district   court   did   not   cite   either   of   these   cases.

Nevertheless, Van Alstyne asserts that, under the law at the time

of his trial, it would have been error for the trial court to have

required Van Alstyne to submit to an examination by the State’s

expert as a condition of Van Alstyne’s offering psychological

testimony.   For this assertion, Van Alstyne relies on Bradford v.

State, 873 S.W.2d 15, 20 (Tex. Crim. App. 1993), overruled by

Soria, 933 S.W.2d at 59 n.21.

     Bradford held:

           [T]he trial court’s action in making the
           admissibility of portions of [the defense
           expert’s] proffered [psychological] testimony
           contingent upon [the defendant’s] submitting
           to an examination by a State-selected expert
           was erroneous and such violated the Sixth
           Amendment to the United States Constitution.
           And under these circumstances the admission of
           [the State’s expert’s] testimony based upon
           his examination of [the defendant] violated
           [the   defendant’s]    right   against   self-
           incrimination.

873 S.W.2d at 20.

     Van Alstyne’s trial took place in 1992; therefore, counsel did

not have the benefit of Bradford (1993).           Van Alstyne contends,

however, that “Bradford cited several [pre-trial] cases dating back

to 1986 which supported this view”.          Bradford relied upon three

cases.


                                    12
     First, it cited Bennett v. State, 742 S.W.2d 664, 671 (Tex.

Crim. App. 1987), vacated, 486 U.S. 1051 (1988), for the holding

that a trial court does not “have the authority to appoint a

psychiatrist for the purpose of examining a defendant for evidence

relating solely to his future dangerousness”.

     Second, both Bradford and Bennett cited McKay v. State, 707

S.W.2d 23, 38 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 871

(1986), which held:    where there was no issue as to either the

defendant’s competency to stand trial or his sanity when the

offense was committed, the State could not have the defendant

examined solely on the future dangerousness issue.          McKay also

held:   “[E]ven if [the defendant] had been examined, he could have

prevented the State from using the evidence obtained by claiming

his Fifth Amendment right against self-incrimination”.       Id.

     Hernandez v. State, 805 S.W.2d 409 (Tex. Crim. App. 1990),

cert. denied, 500 U.S. 960 (1991), is the last of the three

referenced cases cited by Bradford.       Hernandez held:       when the

defendant elicited testimony on cross-examination of the physician

that conducted defendant’s competency exam that tended to show

defendant   suffered   from   paranoid   schizophrenia,   the    defense

“‘opened the door’” to the State’s questioning the physician on re-

direct to establish the defendant suffered instead from an anti-

social personality disorder.    Id. at 412.   Hernandez also observed

that, although the physician did not do so, the physician was

                                  13
prohibited from expressing an opinion on the defendant’s future

dangerousness.      Id.

       With the stage set by Bradford, and these three pre-Bradford

cases referenced by Van Alstyne, at issue is whether the decision

not to seek psychiatric assistance because of the potential harm of

its revealing potentially damaging evidence was reasonable trial

strategy.       Regarding a strategic decision not to investigate

certain evidence, Strickland held:

              [C]ounsel has a duty to make reasonable
              investigations or to make a reasonable
              decision that makes particular investigations
              unnecessary. In any ineffectiveness case, a
              particular decision not to investigate must be
              directly assessed for reasonableness in all
              the circumstances, applying a heavy measure of
              deference to counsel’s judgments.

466 U.S. at 691 (emphasis added).

       Our court has held that counsel makes a reasonable strategic

decision when he does not introduce mitigating character evidence

that would      open   the   door   to   other,   more   damaging,      evidence.

Williams v. Collins, 16 F.3d 626, 632 (5th Cir.), cert. denied, 512

U.S.   1289    (1994).       Williams    also   held   that   counsel    was   not

ineffective in not requesting a psychiatric examination of the

defendant where counsel made a “knowing, strategic decision not to

seek a psychiatric evaluation of [the defendant] because [counsel]

feared the state would use rebuttal psychiatric testimony of [the

defendant’s] future dangerousness”. Id. at 634. The conviction in



                                         14
Williams occurred in Texas; Williams was decided after Bradford

(1993), but before Soria (1996).

     As stated, Van Alstyne’s counsel did not have the benefit of

the now-overruled Bradford plurality decision.   In addition, while

the cases relied upon by Bradford make it clear that, absent

evidence proffered by a defendant of his mental status, the State

cannot compel a psychiatric exam to investigate solely for evidence

of future dangerousness, these cases do not signal the eventual

Bradford holding that a defendant’s proffered psychiatric testimony

does not subject him to an examination by the State.

     Accordingly, based upon the law at the time of Van Alstyne’s

trial, reasonable jurists would not find debatable the district

court’s holding that his counsel made a reasonable strategic

decision not to seek expert psychiatric assistance because of the

danger that any offered psychiatric testimony could have triggered

the State’s ability to offer potentially more harmful evidence. He

has further failed to satisfy the COA-merits-standard because, even

if the State could not have compelled its own examination, it is

certainly possible that, in rebuttal, the State could have used the

results of the exam by Van Alstyne’s own expert to show future

dangerousness; even Bradford does not prohibit such action.

                                b.

     Even if reasonable jurists could debate whether counsel’s

strategic decisions were based upon an erroneous view of the law,


                                15
such   error,   alone,    “does   not    give    rise   to   a   constitutional

ineffectiveness claim”, so long as the decision “was a conscious

and informed tactical one”.        Green v. Johnson, 116 F.3d 1115, 1122

(5th Cir. 1997) (internal quotation marks omitted).                Van Alstyne

has not shown that this decision was not conscious and informed.

Moreover, trial counsel’s affidavit reveals this decision was made

after “disagreement among the trial team as to this issue”.

        To the extent Van Alstyne contends counsel should have

requested the expert psychiatric assistance and then, based upon

the results, decided whether to offer that expert testimony, he

still has not satisfied the COA-merits-standard, especially in the

light of counsel’s fears that any psychiatric testimony would be

rebutted by more damaging evidence, and no indication in the mental

facility   records   or    his    mother’s      proposed     testimony   of   Van

Alstyne’s ever having been diagnosed with a mental illness.

                                        2.

       Even assuming arguendo Van Alstyne has satisfied the COA-

merits-standard for deficient performance, he has not satisfied it

for the requisite prejudice.        As the district court stated:

           While [Van Alstyne] had some behavior problems
           several years earlier due to excessive
           drinking, there was no evidence at trial, nor
           is there any evidence or documentation now
           before the Court, that [Van Alstyne] has ever
           suffered from any mental illness.... Without
           any such evidence, it cannot be said that [Van
           Alstyne] was prejudiced by defense counsel’s



                                        16
              decision not to use psychiatric testimony at
              the punishment phase....

Van Alstyne-USDC, at 11 (emphasis added).

                                        B.

      Van Alstyne next claims counsel were ineffective in failing to

secure the attendance of his mother, a resident of the Philippines,

as a witness at the punishment phase.               The trial court had agreed

to pay her air fare and had written the United States embassy in

Manila that she had very important mitigating evidence for the

trial.

                                        1.

      The district court ruled that Van Alstyne had procedurally

defaulted on this claim.          Van Alstyne-USDC, at 12-13.         Procedural

default occurs where “the petitioner fails to exhaust all available

state remedies, and the state court to which he would be required

to   petition    would    now    find   the   claims       procedurally   barred”.

Bledsue v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999).

      After reviewing Van Alstyne’s state habeas petition, the

district court determined that, although Van Alstyne had alleged

IAC based on counsel’s not requesting psychiatric assistance and

not filing a sworn continuance motion after his mother did not

appear   to    testify,    Van    Alstyne     did    not    claim   counsel   were

ineffective in failing to secure his mother’s attendance. In fact,

in his state habeas petition, Van Alstyne stated:                “At the hearing,

the evidence was undisputed that [his mother’s] absence was in no

                                        17
way due to the negligence of [Van Alstyne’s] counsel and that

counsel had used due diligence in attempting to get her to trial”.

(Emphasis added.)

     The   district    court   also    concluded      that,   if   Van     Alstyne

attempted to assert this claim in Texas courts through a subsequent

habeas petition, he would be barred from doing so.                 Van Alstyne-

USDC, at 13.    Under Texas law, a court may consider the merits of

a subsequent habeas application only if it is established that:

           (1) the current claims and issues have not
           been and could not have been presented
           previously in a timely initial application ...
           because the factual or legal basis for the
           claim was unavailable on the date the
           applicant filed the previous application;

           (2) by a preponderance of the evidence, but
           for   a   violation  of   the  United   States
           Constitution no rational juror could have
           found the applicant guilty beyond a reasonable
           doubt; or

           (3) by clear and convincing evidence, but for
           a violation of the United States Constitution
           no rational juror would have answered in the
           state’s favor one or more of the special
           issues that were submitted to the jury....

TEX. CRIM. PROC. CODE ANN. art. 11.071, § 5(a) (Vernon Supp. 2002).

(Although Van Alstyne can avoid the procedural bar by, for example,

showing cause    and   prejudice      for   failing    in   his    state    habeas

application to raise this unexhausted claim, see Jones v. Johnson,

171 F.3d 270, 277 (5th Cir.), cert. denied, 527 U.S. 1059 (1999),

he makes no attempt to do so.)

     Van Alstyne fails to satisfy the COA-procedural-standard.

                                      18
                                    2.

      Although the district court was not required to do so, it also

addressed the merits of this claim.          See 28 U.S.C. § 2254(b)(2)

(petition may be denied on the merits even if state remedies not

exhausted).      It concluded there was neither deficient performance

nor prejudice.

                                    a.

      Concerning deficient performance vel non, the district court

ruled that Van Alstyne’s mother’s failure to appear was not the

result    of   counsel’s   performance,    but   was   instead     caused   by

logistical problems.

      Along this line, the district court noted that the state trial

court coordinator working to secure the mother’s presence testified

that the defense investigator “had used due diligence and ‘every

effort’ to attempt to obtain the presence of [Van Alstyne’s] mother

at the trial”.     Van Alstyne-USDC, at 14.      It also noted the mother

stated in her affidavit that:      she could not obtain a travel visa

until there was a definite entry and exit date; the dates were not

established until the month before trial; and she encountered

difficulties in meeting with personnel in the American Embassy in

the Philippines to receive approval for her travel to the United

States.    Id.

      Van Alstyne has not shown reasonable jurists would debate that

his   mother’s     absence   can   be     attributed    to   his    counsel.


                                    19
Accordingly, he has not satisfied the COA-merits-standard for

claimed deficient performance.

                                      b.

      Concerning prejudice vel non, the district court ruled that

the mother’s testimony would have been cumulative of that of other

witnesses,    except    for    her   proposed   testimony   regarding   Van

Alstyne’s being hit by a vehicle and struck by lightning; and that

Van Alstyne had presented no evidence that those accidents resulted

in psychological damage other than that already testified to at

trial — that he was a slow learner.         (For example, Van Alstyne’s

uncle, who traveled to the trial from Africa, testified about the

physical abuse Van Alstyne suffered at a very young age from his

father.)

      Van Alstyne maintains this ruling was incorrect, claiming

prejudice because “the mere appearance by [his] mother to speak on

behalf of her son and explain to the jury what his life was like

and to take some amount of responsibility for him would have been

powerful evidence, and perhaps the only hope [he] had to avoid a

death sentence”.       Such an assertion is speculation.      Van Alstyne

has   not   satisfied    the   COA-merits-standard    concerning   whether

prejudice resulted from his mother’s not testifying.

                                      C.

      In his third, and final, claimed basis for IAC, Van Alstyne

maintains counsel were ineffective for making an oral, rather than



                                      20
the required written and sworn, continuance motion after his mother

did not arrive, thereby preventing review on direct appeal of the

trial court’s denial of the motion.     See TEX. CRIM. PROC. CODE ANN.

art. 29.03 & 29.08 (Vernon 1989) (“criminal action may be continued

on the written motion of the State or of the defendant”; “[a]ll

motions for continuance must be sworn”).

     In any event, the state habeas court rejected this IAC claim.

It ruled that, at the time of the continuance hearing, and because

Van Alstyne’s counsel “had never talked with [Van Alstyne’s] mother

and had ‘no way of knowing’ whether the defense would want to call

her as a witness”, there was no basis for the trial court to grant

a continuance.     As a result, the state habeas court concluded

counsel were not ineffective in not preserving this issue for

review.

     The district court ruled that, assuming arguendo counsel’s

performance was deficient for not filing the motion, Van Alstyne

still had   not   shown   prejudice.   Van   Alstyne-USDC,   at   18-20.

According to the district court, had the continuance-denial been

preserved for review by the Texas appellate courts, the denial

would have been affirmed.     It based this on the fact that, at the

time counsel so moved (orally), there was no evidence before the

trial court that the mother would testify to anything material or

beneficial, because, as stated earlier, much of what she testified

to would have been cumulative of the testimony of other witnesses.


                                  21
Id. at 19-20.    See Gentry v. State, 770 S.W.2d 780, 786-88 (Tex.

Crim. App. 1988) (to be entitled to a continuance the “expected

testimony has to be material to the defendant”), cert. denied, 490

U.S. 1102 (1989).

     Furthermore, the district court observed that the trial court

did not have the benefit of the mother’s affidavit when ruling on

the motion.     Van Alstyne-USDC, at 19.     (As noted supra, it was

filed subsequently with the new trial motion.) Therefore, the

district court concluded that the trial court would not have been

found to have abused its discretion in denying the motion.        Id.

See Duhamel v. State, 717 S.W.2d 80, 83 (Tex. Crim. App. 1986)

(“granting or denial of a motion for continuance is within the

sound discretion of the trial court”), cert. denied, 480 U.S. 926

(1987).

     Van Alstyne does not address the district court’s ruling that

he has not shown that, on direct appeal, the Texas court would have

reversed the continuance-denial.      “We have held repeatedly that we

will not consider issues not briefed by the parties.”      Johnson v.

Sawyer, 120 F.3d 1307, 1315 (5th Cir. 1997).     See McKethan v. Tex.

Farm Bureau, 996 F.2d 734, 739 n.9 (5th Cir. 1993) (failure to

sufficiently brief issue constitutes a waiver of that issue), cert.

denied, 510 U.S. 1046 (1994).

     In any event, Van Alstyne has failed to satisfy the COA-

merits-standard.

                                 22
                         III.

For the foregoing reasons, a COA is

                                      DENIED.




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