           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 31, 2009

                                       No. 08-70035                    Charles R. Fulbruge III
                                                                               Clerk

ANTHONY BARTEE

                                                   Petitioner - Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                   Respondent - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:06-CV-263


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       In 1998, Anthony Bartee was sentenced to death in Texas for the murder
of David Cook, committed during a robbery.                   He seeks a Certificate of
Appealability (COA) from our court in order to be able to appeal from the district
court’s denial of federal habeas relief. Along that line, he requests a COA for
four issues. In addition, he seeks a remand for consideration of claimed newly
discovered evidence. DENIED.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-70035

                                        I.
      On 17 August 1996, the victim’s body was discovered by police and his
family in his home in San Antonio, Texas. He had been shot twice in the head
and stabbed in the shoulder. The bullet fragments at the scene were consistent
with having been fired from a pistol owned by the victim. This pistol, and the
victim’s red Harley Davidson motorcycle, were missing from his home.
      At some point that summer, Bartee had asked an acquaintance to assist
him in robbing and killing a neighbor, informing him this neighbor “had some
gold [credit] cards and a motorcycle” that Bartee wanted. And, two days prior
to the discovery of the victim’s body, Bartee had informed another acquaintance,
Munoz, that he intended to “ace some white dude out”. Bartee unsuccessfully
solicited both Munoz and several others to assist him in achieving this result.
That same day, at nearly midnight, Bartee arrived at Munoz’ home, riding a
Harley Davidson motorcycle and claiming to carry a gun. Several witnesses
identified this motorcycle as being similar or identical to the victim’s.
      In April 1997, Bartee was indicted for capital murder. In April 1998, on
the day the trial’s guilt phase was to begin, one of Bartee’s attorneys, Sawyer,
who had conducted the month-long voir dire of the jury, notified the court that
he had discovered that morning that he was acquainted with the victim’s family
and asked to withdraw as Bartee’s co-counsel. Sawyer informed the court he
was concerned “there might be a basic built-in conflict later on in trial” as a
result of this acquaintance.    He was replaced, and the trial court delayed
resuming the trial for four weeks.
      In May 1998, the jury found Bartee guilty of capital murder. At the
punishment phase, two women testified to Bartee’s having sexually assaulted
them at knife-point in 1982 when they were teenagers.           Bartee called as
witnesses his father and a public-school risk counselor. The jury found, inter
alia: (1) beyond a reasonable doubt, there was a probability Bartee “would

                                        2
                                  No. 08-70035

commit criminal acts of violence that would constitute a continuing threat to
society”; and (2) there were inadequate mitigating circumstances for Bartee to
be sentenced to life in prison, rather than death. A death sentence was imposed.
      On direct appeal, Bartee raised 12 issues. The Texas Court of Criminal
Appeals, in May 2000, affirmed the conviction and sentence. Bartee did not seek
review by the Supreme Court of the United States.
      Bartee began a state habeas proceeding in January 2000, raising 37
issues. During an evidentiary hearing, Bartee called four witnesses: (1) his
father; (2) Bartee’s lead trial counsel; (3) the lead prosecutor from the trial; and
(4) a private investigator who helped interview potential witnesses for Bartee’s
defense at trial. In October 2005, the state habeas trial court entered findings
of fact and conclusions of law and recommended denial of relief.
      In March 2006, in a two-page order, the Texas Court of Criminal Appeals
adopted the state habeas trial court’s findings of fact and conclusions of law and
denied relief.
      In February 2007, Bartee filed his petition for federal habeas relief, raising
31 issues. That September, the State filed an answer and motion for summary
judgment. For the reasons stated in its 203-page opinion, the district court
denied relief in August 2008 and, in that opinion, sua sponte denied a COA for
any of Bartee’s claims. Bartee v. Quarterman, 574 F. Supp. 2d 624, 714 (W.D.
Tex. 2008).
      Bartee filed a notice of appeal in August 2008. The district court treated
it as an implicit request for a COA, which it denied that month. That November,
Bartee requested a COA from our court.
                                        II.
      Bartee’s 28 U.S.C. § 2254 habeas application is subject to the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
104-132, 110 Stat. 1214 (1996). E.g., Penry v. Johnson, 532 U.S. 782, 792 (2001).

                                         3
                                  No. 08-70035

Under AEDPA, Bartee may not appeal the denial of habeas relief unless he first
obtains a COA from either the district, or this, court. 28 U.S.C. § 2253(c); Miller
v. Dretke, 404 F.3d 908, 912 (5th Cir. 2005) (citations omitted). The district court
must first decide whether to grant a COA; only if it is denied by that court may
a COA on that issue be requested here. F ED. R. A PP. P. 22(b)(1). Having been
denied a COA by the district court, Bartee requests a COA here for each of the
four issues discussed infra.
      To obtain a COA, Bartee must make “a substantial showing of the denial
of a constitutional right”. 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537
U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 483 (2000). To make such
a showing when the district court’s habeas denial is on the merits of an issue,
Bartee must demonstrate: “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” (reasonable-jurists standard). Miller-El, 537 U.S. at 336 (quoting Slack,
529 U.S. at 484).
      In deciding whether to grant a COA, we can make only a threshold inquiry
into the district court’s application of AEDPA to Bartee’s constitutional claims;
we may not consider the factual or legal merits in support of those claims.
Miller-El, 537 U.S. at 336. “When a court of appeals sidesteps this process by
first deciding the merits of an appeal, and then justifying its denial of a COA
based on its adjudication of the actual merits, it is in essence deciding an appeal
without jurisdiction.” Id. at 336-37.
      For purposes of our threshold inquiry, we are cognizant that, under
AEDPA, the district court was required, with limited exceptions described below,
to defer to the state court’s resolution of Bartee’s claims. Those exceptions turn
on the character of the state-court’s ruling. Foster v. Quarterman, 466 F.3d 359,
365 (5 th Cir. 2006).

                                         4
                                  No. 08-70035

      First, on questions of law, as well as mixed questions of law and fact, the
district court was required, under AEDPA, to defer to the state-court’s decision
unless it “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court”. 28 U.S.C.
§ 2254(d)(1); see Miller, 404 F.3d at 913. The state-court’s decision is considered
contrary to clearly established federal law if it “reaches a legal conclusion in
direct conflict with a prior decision of the Supreme Court or if it reaches a
different   conclusion   than   the   Supreme     Court   based    on   materially
indistinguishable facts”. Miller, 404 F.3d at 913 (quoting Miniel v. Cockrell, 339
F.3d 331, 337 (5th Cir. 2003)) (internal quotation marks omitted).
      Second, under AEDPA, our threshold inquiry must recognize the district
court’s obligation to defer to the state-court’s factual findings, unless they
“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)(2). Along that line, the district court was required to presume the
state-court’s factual findings were correct; in district court, Bartee had to rebut
that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
      Moreover, our threshold inquiry requires consideration of a COA request
against the backdrop of the elements of Bartee’s underlying constitutional
claims. See Miller, 404 F.3d at 913. Needless to say, meaningful review of the
district court’s ruling, for COA purposes, on whether Bartee made the requisite
28 U.S.C. § 2253(c)(2) “substantial showing of the denial of a constitutional
right” requires our considering these elements.
      Initially, Bartee contends this matter should be remanded to district court
in the light of new evidence: genetic testing of blood and hair found at the
murder scene which, he claims, establishes his actual innocence.            In the
alternative, he contends he is entitled to a COA for four claims: (1) the
prosecutor’s impermissible comment on Bartee’s failure to testify; (2) the

                                        5
                                  No. 08-70035

prosecution’s failure to disclose Brady material; (3) denial of counsel and conflict
of interest; and (4) ineffective assistance of counsel. For the reasons discussed
in greater detail, infra, remand is not required and the other four issues do not
satisfy the above-stated standards for a COA’s being granted.
                                        A.
      For obvious reasons, Bartee’s procedural contention—that we should
remand this matter to district court because of the claimed new evidence (DNA)
“establishing his actual innocence”—will be considered before examining his
COA requests. See Thompson v. Quarterman, 292 F. App’x 277, 284-85 (5th Cir.
2008) (unpublished) (considering claimed procedural errors in federal habeas
proceeding prior to examining COA request). It is unclear whether Bartee
presents his claimed actual innocence as grounds for habeas relief, or whether
he asserts such innocence as part of his other claims for which he requests a
COA. We will assume the latter, its being well established, of course, that actual
innocence is not grounds for federal habeas relief from a state-court conviction.
See Herrera v. Collins, 506 U.S. 390, 400 (1993).
      It appears Bartee advances his “actual innocence” claim as support for his
lesser-included-offense-instruction and ineffective-assistance-of-counsel claims.
Although not clearly articulated, the claimed exculpatory evidence would
presumably be used to demonstrate the requisite prejudice for an ineffective-
assistance claim. Bartee failed to present such a claim to the state habeas court;
but the district court could consider it because the State did not object. Because
such a claim was not considered by the state habeas court, the district court
reviewed it de novo.
      Bartee contended in district court that the jury should have been
permitted to consider the lesser included offenses of robbery or aggravated
robbery, on the factual theory that Bartee robbed the victim but did not kill him.
Bartee claims two gang members committed the murder. (Notably, Bartee has

                                         6
                                  No. 08-70035

not requested a COA from our court on his lesser-included-offense-instruction
claim.)
      The district court denied relief for this claim, according to Bartee,
primarily due to a lack of evidence to support his alternative theory of the
murder. Bartee urges our remanding this matter to district court for it to
consider his lesser-included-offense claims in the light of “this newly discovered
evidence”.
      Bartee cites no authority in support of his proposition that this “newly
discovered evidence” compels remanding for new consideration of his lesser-
included-offense claims. Noting that actual innocence is not a grounds for
federal habeas relief, the State also contends Bartee’s evidence would not satisfy
this standard in any event.
      Assuming we can consider this new DNA evidence—a point the State does
not contest—it would not alter the district court’s analysis. The district court
did not reject Bartee’s lesser-included-offense claims because of an absence of
evidence from which a rational juror could have concluded others were present
that night. Instead, it concluded there was no evidence from which a rational
juror could have concluded someone other than Bartee had stabbed the victim’s
throat after he had been shot and killed. The court noted that Bartee had
identified “no evidence in the trial record establishing that either [of the gang
members he alleges to have murdered the victim] ever assaulted [the victim]
with a knife”. Bartee, 574 F. Supp. 2d at 679. Bartee does not challenge this
conclusion.
      Moreover, the district court concluded that, even if Bartee did not “fire the
fatal shots[,] . . . the evidence permits only one rational inference: acting with
the intent to rob [the victim], [Bartee] attempted to actively participate in the
fatal assault upon [the victim] by stabbing him before the fatal shots were fired
and then slashing his neck after the fatal shots were fired”. Id. at 680. Under


                                        7
                                   No. 08-70035

the Texas law of parties, the district court concluded, Bartee would be liable
even if another fired the fatal shot. Accordingly, the DNA evidence to which
Bartee refers proves at most that someone other than Bartee was present, a fact
not inconsistent with the “one rational inference” the evidence permitted.
      Along this line, the 3 September 2008 Serology/DNA Report which Bartee
appended to his brief here notes that it did not compare the hair or blood to that
of the victim because no sample had been submitted. It is, therefore, entirely
possible this DNA evidence proves nothing at all.
      Assuming the DNA evidence proves anything, it does not alter the district
court’s analysis that there was no evidence in the record to support a rational
juror’s concluding someone other than Bartee used a knife on the victim. Bartee
has not challenged the district court’s characterization of the record, nor, as
noted, has he sought a COA regarding the lesser-included-offense-instruction
issue. Accordingly, his remand request is without merit.
                                         B.
      As noted, Bartee requests a COA for each of the following four claims: (1)
the prosecutor commented on Bartee’s failure to testify; (2) a Brady violation; (3)
denial of counsel and conflict of interest; and (4) ineffective assistance of counsel.
Again, none satisfies the standard for a COA’s being granted.
                                          1.
      Bartee contends the prosecutor, in closing argument, commented on
Bartee’s failure to testify at trial, in violation of the Fifth Amendment. During
closing argument at the punishment phase, the prosecutor, in referring to one
of Bartee’s character witnesses who had described Bartee as “a model prisoner”,
asked: “Is a model prisoner somebody who doesn’t admit they have committed
a crime?”    The trial court overruled Bartee’s objection to this comment,
construing it merely as a reference to Bartee’s continued assertions of his
innocence of the two sexual assaults of which he previously had been convicted.


                                          8
                                  No. 08-70035

The prosecutor subsequently commented on Bartee’s failure to “own up to one
bit . . . of responsibility”. The trial court sustained Bartee’s objection to this
comment and instructed the jury to disregard it, but denied his motion for a
mistrial.
      Bartee contested these rulings in his direct appeal. Regarding the first
comment, the Texas Court of Criminal Appeals concluded that, in context, the
comment did not refer to Bartee’s failure to testify and, instead, clearly referred
to his statements to one of his character witnesses that he was not guilty of the
sexual assaults for which he previously had been convicted. The Texas Court of
Criminal Appeals acknowledged that the second comment was ambiguous
enough that it could have been viewed as a comment on Bartee’s failure to
testify. It concluded, however, that the trial court’s instruction to disregard the
comment was enough to cure any possible error.
      Bartee also raised these claims in his state habeas proceeding, but the
state habeas court held the prior consideration of this claim on direct appeal
precluded their review in the state habeas proceeding.            It held, in the
alternative, that if the claims differed from those raised on direct appeal, they
could have been raised then and were not appropriate bases for habeas relief.
      In denying federal habeas relief on this issue, the district court concluded
that none of the comments could have been construed as referring to Bartee’s
failure to testify. The district court also concluded that, even if there were
ambiguity regarding the second comment, the trial court’s instructing the jury
to disregard it “eliminated any threat of prejudice to petitioner”. Lastly, it
concluded that any error arising from the closing argument would be harmless.
Accordingly, the district court concluded that, under AEDPA, the state-court
rejection of this claim “was neither contrary to, nor involved an unreasonable
application of, clearly established Federal Law”.



                                        9
                                  No. 08-70035

      Bartee contends that the district court and Texas Court of Criminal
Appeals came to different conclusions regarding the meaning of the prosecutor’s
comments, the Texas court finding the second comment ambiguous but the
district court finding it not a reference to the failure to testify. Bartee contends
the district court thereby improperly made findings of fact when AEDPA
compelled it to defer to those by the state court. Accordingly, Bartee asserts a
COA should be granted on this issue because, in view of the district court’s and
the Texas Court of Criminal Appeals’ having reached different conclusions
regarding the meaning of the second comment, reasonable jurists already have
disagreed on this issue.
      Bartee’s contentions fail for at least two reasons. First, he misreads the
district court’s opinion. The district court does not simply conclude the second
comment was merely a reference to Bartee’s continued declarations of innocence
regarding the sexual assaults. (Of course, the district court did not engage in de
novo review of these claims; its analysis of Bartee’s claims was only to determine
whether, under AEDPA, the state-court decision involved an unreasonable
application of clearly established law.) Instead, the district court was applying
the framework of Cotton v. Cockrell, 343 F.3d 746, 751 (5th Cir. 2003) (quoting
Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir. 1999)), which holds a comment
does not violate the Fifth Amendment unless “the prosecutor’s manifest intent
in making the remark must have been to comment on the defendant’s silence,
or the character of the remark must have been such that the jury would
naturally and necessarily construe it as a comment on the defendant’s silence”.
The district court merely noted that these comments, in context, neither
“manifested a prosecutorial intent to comment on petitioner’s failure to testify
at trial, [nor] were of such a character as to necessarily have been construed by
the jury as a comment on petitioner’s failure to testify”. Bartee, 574 F. Supp. 2d
at 684. Accordingly, the district court was not making a finding of fact, but was,

                                        10
                                  No. 08-70035

instead, applying our precedent to the facts of this case to determine the
reasonableness, under AEDPA, of the state-court resolution of the issue.
      Secondly, this is only one of three alternative reasons given by the district
court in support of its conclusion that, under AEDPA, the state-court resolution
of this claim was not unreasonable. The district court also noted that, even if
there were ambiguity, it had been cured by the trial court’s instruction to the
jury to disregard the comments. Finally, it noted that these comments, even if
impermissible, were harmless.          The district court did not, as Bartee now
contends, “determin[e] independently that the prosecutor’s remark was not what
the trial court had found it to be”.
      Notably, Bartee makes no attempt to demonstrate, under AEDPA, how the
state-court conclusion there was no violation of Bartee’s Fifth Amendment right
was an unreasonable application of clearly established law. In sum, he fails to
demonstrate that jurists of reason could debate the district court’s resolution of
this claim.
                                          2.
      Bartee contends a COA should be granted regarding the prosecution’s
alleged failure to disclose materials it was required to disclose under Brady v.
Maryland, 373 U.S. 83 (1963). He bases the claimed Brady violation on the
assertion that, “[w]ithin a few months after the trial”, two of the State’s
witnesses received “very favorable deals on their cases”.
      Bartee pursued this Brady claim before the state habeas court. That court
rejected it, finding: “Bartee presented no evidence to establish the existence of
any ‘deals’ between the prosecution and witnesses”.
      The district court concluded that, under AEDPA, the state habeas court’s
resolution of this claim was reasonable because, inter alia, under Knox v.
Johnson, 224 F.3d 470, 482 (5th Cir. 2000) (quoting Goodwin v. Johnson, 132



                                          11
                                   No. 08-70035

F.3d 162, 187 (5th Cir. 1998)), “a nebulous expectation of help from the state
. . . is not Brady material”.
      In support of his Brady claim, Bartee offered evidence in district court that
had not been presented to the state habeas court. Although the district court
concluded this evidence would not have altered its analysis of the claim, it
concluded that, because this evidence had not been presented to the state habeas
court, it could not consider it.
      Assuming arguendo we can consider Bartee’s new evidence, he
nevertheless fails to establish his entitlement to a COA on this issue. This
evidence establishes only that two of the State’s witnesses received favorable
dispositions in their own criminal proceedings, subsequent to their testimony in
Bartee’s trial. He has presented no evidence of an agreement between the State
and the witnesses. Accordingly, at most, he has established these witnesses had
the earlier-described “nebulous expectation of help from the state”. Bartee has
not, therefore, established that jurists of reason would debate the district court’s
resolution of his Brady claim.
                                         3.
      Bartee contends he was denied counsel because Sawyer, one of Bartee’s
attorneys, withdrew after discovering he knew the victim’s family, and after he
had represented him during the investigation for trial and jury selection.
Michael Sawyer began serving as counsel on or about 1 March 1998. Voir dire
began on 9 March 1998, and a jury was selected by 8 April. On 13 April, the day
the trial’s guilt phase was to begin, Sawyer informed the trial court that he was
acquainted with the victim’s family and asked to withdraw as counsel, citing the
potential conflict.
      According to Bartee, Sawyer’s primary responsibility was jury selection.
Bartee contends that one of two things must be true: either Sawyer had
performed so little investigation that he did not realize he knew the victim’s

                                        12
                                  No. 08-70035

family, or he knew of the conflict and neglected to inform the court or Bartee of
it. In either event, Bartee contends, he was deprived of his Sixth Amendment
right to counsel.
      The state habeas court rejected Bartee’s claim, finding both that Bartee
did not “produce any substantive evidence establishing” a conflict of interest and
that Bartee had failed to show the conflict had an adverse impact on Sawyer’s
performance. The state habeas court also found it relevant that Sawyer was
never Bartee’s sole counsel. “[A]t all relevant times Bartee was represented by
another competent attorney who provided effective representation”.
      In denying federal habeas relief for this claim, the district court found: the
state habeas court’s concluding the actual conflict of interest standard of Cuyler
v. Sullivan, 446 U.S. 335, 348 (1980), did not apply to Bartee was not
unreasonable, under AEDPA, because Bartee could show neither an actual
conflict nor any adverse effect on his representation.
      The district court reached the same conclusion, under AEDPA, regarding
Bartee’s claim to a presumption of prejudice under United States v. Cronic, 466
U.S. 648 (1984). Because he was represented throughout voir dire by his lead
counsel as well as by Sawyer, the district court concluded that, even if Sawyer’s
investigation was inadequate, it would not have risen to the level of being a total
failure “to subject the prosecution’s case to meaningful adversarial testing”.
Lastly, the district court found Bartee had “presented the state habeas court
with no evidence showing . . . Sawyer’s relationship with the [victim’s] family
. . . had any effects . . . analogous to the extreme situations in which the
Supreme Court” has presumed prejudice under Cronic. Bartee, 574 F. Supp. 2d
at 645.
      Accordingly, under AEDPA, the district court concluded the state habeas
court’s rejection of these claims “was neither contrary to, nor involved an
unreasonable application of, clearly established Federal law, . . . nor an

                                        13
                                 No. 08-70035

unreasonable determination of the facts in light of the evidence presented in
[Bartee’s] state habeas corpus proceeding”. Id.
                                       a.
      Bartee seeks a COA in order to appeal a conflict-of-interest claim under
Cuyler. There, the Court addressed “whether the mere possibility of a conflict
of interest warrants the conclusion that the defendant was deprived of his right
to counsel”. Cuyler, 446 U.S. at 345. Unlike ineffective-assistance-of-counsel
claims, governed by Strickland’s prejudice requirements, under Cuyler,
“prejudice is presumed if the defendant shows that an actual conflict of interest
adversely affected his lawyer’s performance”. Beets v. Scott, 65 F.3d 1258, 1265
(5th Cir. 1995) (en banc) (citing Cuyler, 446 U.S. at 348).
      As our court noted in Beets, 65 F.3d at 1265, “[t]he Supreme Court has not
expanded Cuyler’s presumed prejudice standard beyond cases involving multiple
representation”.   There is nothing in the record suggesting Sawyer ever
represented the victim’s family, only that he knew them socially. Furthermore,
even when Cuyler might be applicable, “[p]rejudice is presumed only if the
defendant demonstrates that counsel ‘actively represented conflicting interests’
and that ‘an actual conflict of interest adversely affected his lawyer’s
performance’”. Strickland v. Washington, 466 U.S. 668, 692 (1984) (quoting
Cuyler, 446 U.S. at 350).      Bartee has neither established that Sawyer’s
acquaintance with the victim’s family constituted an actual conflict of interest,
nor that Sawyer’s claimed conflict adversely affected his performance.
      In short, Cuyler is simply inapplicable to Bartee’s Sixth Amendment
claims.   See also Kirkpatrick v. Butler, 870 F.2d 276, 284 (5th Cir. 1989)
(Statement On Petition for Rehearing and Suggestion for Rehearing En Banc)
(“[F]riendship with and past representation of members of a victim’s family does
not preclude an attorney from representing the defendant when, as here, the
attorney revealed his relationship to the defendant and the court”). Accordingly,

                                       14
                                  No. 08-70035

reasonable jurists could not debate the district court’s conclusion that, under
AEDPA, the state habeas court’s rejection of Bartee’s Cuyler claim was not
unreasonable.
                                        b.
       In Cronic, the Court considered which “circumstances . . . are so likely to
prejudice the accused that” a petitioner need not prove actual prejudice when
advancing an ineffective-assistance-of-counsel claim. 466 U.S. at 658. The
Court recognized three exceptions to the normal rule that a petitioner advancing
an ineffective-assistance-of-counsel claim must prove actual prejudice in addition
to deficient performance.      See Bell v. Cone, 535 U.S. 685, 695-96 (2002)
(summarizing the three situations from Cronic). Under Cronic, prejudice can be
presumed: (1) if the petitioner “is denied the presence of counsel at a critical
stage”, id. at 695 (internal quotation marks and citations omitted); (2) if
“counsel entirely fails to subject the prosecution’s case to meaningful adversarial
testing”, Cronic, 466 U.S. at 659; and (3) “where counsel is called upon to render
assistance under circumstances where competent counsel very likely could not”,
Bell, 535 F.3d at 696. As discussed below, because none of the Cronic exceptions
applies, Bartee has not demonstrated that jurists of reason could disagree with
the district court’s conclusion that, under AEDPA, the state court’s rejection of
Bartee’s Cronic claim was not an unreasonable application of clearly established
law.
       Regarding the first exception, as the district court noted, Bartee was
represented throughout his trial by his lead counsel.        Accordingly, even if
Sawyer were somehow constructively absent, Bartee cannot say he was without
counsel at a critical stage.
       Regarding the second exception, Bartee does not even appear to contend
that Sawyer failed to subject the prosecution’s case to meaningful adversarial
testing.

                                        15
                                  No. 08-70035

      Finally, he does not suggest how this case is similar to those in which the
third exception has been found to apply.
      The cases Bartee cites do not make debatable the district court’s
conclusion regarding his Cronic claim. Burdine v. Johnson, 262 F.3d 336, 338
(5th Cir. 2001) (en banc), found the first Cronic exception to apply when
petitioner’s counsel had slept during portions of the trial during which evidence
against defendant was admitted. There is no assertion here that Sawyer was
absent or asleep during some stage of the proceedings. Bartee’s claim is that
Sawyer did his job poorly, not that he failed to do it at all.
      Bartee cites Satterwhite v. Texas, 486 U.S. 249, 256 (1988), for the
proposition that “[s]ome constitutional violations . . . by their very nature cast
so much doubt on the fairness of the trial process that, as a matter of law, they
can never be considered harmless”. Bartee contends: because Sawyer “was so
unfamiliar with the facts of the case that he didn’t even realize that he knew the
victim and his family, this Court can have no confidence in the fairness of the
entire trial”. Satterwhite, however, is entirely irrelevant. The state habeas
court did not employ harmless-error analysis in rejecting Bartee’s Cronic claim,
nor did the district court in determining, under AEDPA, that the state habeas
court’s decision was not unreasonable. Accordingly, Satterwhite has no effect on
Bartee’s Cronic claim.
      Bartee cites Williams v. Taylor, 529 U.S. 362 (2000), but Williams involved
an application of Strickland, not Cronic. Williams, similarly, has no bearing on
Bartee’s Cronic claims.
      Finally, Bartee contends prejudice should be evaluated under the
“standard of harm . . . applied when an attorney labored under a conflict of
interest”. Bartee cites Perillo v. Johnson, 79 F.3d 441, 448 (5 th Cir. 1996), in
support of this claim. Perillo, however, dealt with the Cuyler prejudice standard.



                                        16
                                  No. 08-70035

As noted, supra, jurists of reason would not debate the applicability vel non of
Cuyler. Accordingly, this contention is similarly meritless.
      In sum, Bartee has not established that jurists of reason would find the
district court’s resolution of his Cronic or Cuyler claims debatable.
                                        4.
      Bartee also seeks a COA to appeal the district court’s denial of his
Strickland claim for ineffective assistance of counsel. He maintains counsel was
ineffective at his trial’s guilt and punishment phases.     In his state habeas
proceeding, Bartee called four witnesses: (1) his father; (2) Callahan, Bartee’s
lead trial counsel; (3) the lead prosecutor from trial; and (4) a private
investigator who assisted Bartee’s attorneys at trial. He did not call Callahan’s
co-counsel from trial, nor did he ask Callahan about “the subjective thought
processes and strategic reasoning underlying [his] decision-making . . .
particularly with regard to counsel’s decisions not to investigate potentially
advantageous factual matters more thoroughly”. Bartee, 574 F. Supp. 2d at 634.
He similarly “introduced no testimony from any witness suggesting that any
additional, admissible, exculpatory, mitigating, or favorable impeachment
evidence existed at the time of . . . trial which could have been discovered . . .
through more thorough investigation”. Id.
      The state habeas court considered, and rejected, Bartee’s Strickland claim,
concluding Bartee had failed to produce any evidence establishing: (1) what
additional evidence would have been discovered had his counsel performed
additional investigation; (2) “that defense counsel failed to work as a team”; (3)
what uncalled expert witnesses were available and would have been helpful to
the defense; (4) his counsel was using, or impaired by the use of, alcohol during
the trial; (5) the reasons for his attorney’s failure to move to exclude witnesses
from the courtroom or that any witnesses were actually present during the trial;



                                       17
                                   No. 08-70035

and (6) the existence and availability of exculpatory or mitigating evidence not
presented at trial.
      In addition, the state habeas court rejected Bartee’s claim that his counsel
was deficient for failing to request a limiting instruction during the punishment
phase, holding Bartee was not entitled to the instruction.          It also rejected
Bartee’s claim that his counsel was deficient for failing to object to portions of
the State’s closing argument during the guilt phase and to evidence of the
victim’s good character, finding that, in the absence of evidence explaining
counsel’s failure to object, the record was insufficient “to overcome the strong
presumption that counsel’s performance was reasonable”. Ex Parte Bartee, No.
97-CR-1659-W1, slip op. at 11 (Tex. Dist. 17 October 2005) (unpublished). It also
rejected Bartee’s claim that trial counsel was deficient for failing to make an
opening statement during the penalty phase, noting that his counsel had
requested, but the trial court prohibited, making the statement.        Finally, the
state habeas court rejected Bartee’s claim that the “totality of the representation
demonstrates that counsel was ineffective”, noting the experience of his lead
counsel and Bartee’s own inconsistent statements about what happened on the
night of the murder. Id. at 12.
      The district court denied federal habeas relief on Bartee’s Strickland
claim, concluding, under AEDPA, that the state habeas court’s resolution of
Bartee’s claim was not unreasonable. It found the “problem with petitioner’s
complaints of ineffective assistance in this cause [to be] the fact petitioner failed
to present the state habeas court with any evidence, other than that contained
in the petitioner’s trial and appellate records” regarding Bartee’s “counsels’
strategic and tactical decision-making”. Bartee, 574 F. Supp. 2d at 649.        The
district court concluded: “Absent some showing a counsel’s subjective decision-
making was objectively unreasonable, . . . it is almost impossible for a habeas
corpus petitioner to overcome the presumption of reasonableness afforded his

                                         18
                                  No. 08-70035

counsel’s strategic and tactical decisions under Strickland”. Id. Ultimately, the
district court concluded Bartee had “failed to carry his burden of proving the
actions of his trial counsel . . . fell outside the wide range of objectively
reasonable professional conduct . . . . [or to prove] he was ‘prejudiced’ within the
meaning of Strickland”.     Id. at 652.    As a result, it concluded that, under
AEDPA, the state habeas court’s rejection of Bartee’s Strickland claim was not
an unreasonable application of clearly established law.
      Bartee urges us to grant a COA on this issue because the district court
faulted him for not presenting evidence which, according to Bartee, “would have
been rejected as not fairly presented” if it had been offered. To the extent he
contends the district court faulted him for not presenting evidence he could not
have offered, he misapprehends the district court’s opinion. The district court
did not reject Bartee’s Strickland claim because he failed to advance an
impermissible claim of ineffective assistance by his state-court habeas counsel,
as Bartee seems to suggest. Although the district court did note Bartee’s not
having explained his state-court habeas counsel’s failure to offer evidence
establishing a Strickland claim, it did not suggest this lack of an explanation
informed its denial of relief. On the contrary, as quoted infra, it concluded
Bartee had failed to carry his burden of proof regarding either prong of
Strickland (deficient performance and prejudice) such that the state habeas
court’s rejection of his Strickland claim was not unreasonable. The failure to
explain these defects did not motivate the denial of federal habeas relief; the
defects themselves did.
      Rather than explain how jurists of reason would find the district court’s
conclusion debatable, Bartee repeats, essentially verbatim, the factual
contentions made to the district court in support of his Strickland claim.      He
still fails to explain how any of the claimed deficiencies fell outside the range of
objectively reasonable professional conduct. We need not determine whether

                                          19
                                  No. 08-70035

Bartee has established his entitlement to a COA based on these deficiencies,
however, because he makes no meaningful attempt to explain how he was
prejudiced by them. In the absence of some evidence of what prejudice Bartee
suffered from the claimed errors, reasonable minds could not disagree about the
district court’s rejection of relief on Bartee’s Strickland claim.
                                        III.
      For the foregoing reasons, Bartee’s requests for a remand and COA are
DENIED.




                                        20
