                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                           No. 00-60293


                        TRACY ALAN HANSEN,

                                               Petitioner-Appellant,

                              versus

       ROBERT ARMSTRONG, Superintendent, Mississippi State
   Penitentiary; ROBERT L. JOHNSON, Commissioner, Mississippi
                    Department of Corrections,

                                              Respondents-Appellees.


          Appeal from the United States District Court
            for the Southern District of Mississippi
                          (1:96-CV-60)

                         November 6, 2001

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:1

     At issue is whether Tracy Alan Hansen, a state prisoner

sentenced to death for capital murder, satisfies the standards

requisite to being allowed to appeal the district court’s denial of

28 U.S.C. § 2254 habeas relief.     Hansen requests the requisite

certificate of appealability (COA) for each of several issues,

concerning his conviction and sentence.     DENIED.




     1
      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this opinion should not be published and is not precedent except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.
                                   I.

     On 10 April 1987, having left Florida earlier that day, Hansen

and Anita Louise Krecic were traveling on Interstate 10 in Harrison

County, Mississippi, in a blue Lincoln (town car); Hansen was

driving.     Observing erratic driving and speeding, Mississippi

Highway Safety Patrol Officer (State Trooper) David Bruce Ladner

signaled for Hansen to pull over.         Officer Ladner requested to

search the vehicle.     Hansen and Krecic, using fictitious names,

signed a consent to search form.

     Subsequently, Hansen fired a .38 caliber pistol at Officer

Ladner.    After the Officer took evasive action, Hansen fired twice

more at close range, each shot striking the Officer in the back.

The Officer managed to reach the median, and a passing motorist

took him to a hospital; he died approximately 31 hours later.

     Because the Officer had taken the keys to their vehicle,

Hansen and Krecic took the Officer’s patrol car to an I-10 exit.

They immediately pulled over, and took, a Ford Ranger driven by

Daisy Morgan, leaving her there.

     After unsuccessfully seeking transportation to New Orleans,

Louisiana, Hansen and Krecic reached a home in Hancock County,

Mississippi.    Persons there agreed to take Hansen and Krecic to

Waveland,   Mississippi;   en   route,   they   were   stopped   by   State

Troopers.    Hansen and Krecic were taken into custody.          A further




                                   2
description concerning the incident, including other witnesses,

appears infra in part II.E. (Confrontation Clause claim).

      In 1987, Hansen was found guilty in a capital murder trial.

After the penalty hearing, he was sentenced to death because the

jury found: the capital offense was especially heinous, atrocious,

or   cruel,    and    was   committed    for   the   purpose    of    avoiding    or

preventing lawful arrest, or effecting an escape from custody; and

these aggravating circumstances outweighed the mitigating.                       See

MISS. CODE ANN. § 99-19-101(3) (jury must find sufficient aggravating

circumstances,        enumerated    in   subsection    (5)     of    statute,    not

outweighed by mitigating circumstances, subsection (6)).

      Through    an    extremely     comprehensive     opinion       covering    the

approximately 45 issues raised on direct appeal, the Mississippi

Supreme Court affirmed.          Hansen v. State, 592 So. 2d 114 (Miss.

1991).    Review was denied by the Supreme Court of the United

States.   Hansen v. Mississippi, 504 U.S. 921 (1992).

      Hansen    sought      post-conviction     relief   in    the    Mississippi

Supreme Court; relief was denied, except for one issue concerning

the method of execution.           Hansen v. State, 649 So. 2d 1256 (Miss.

1994).    Hansen had been sentenced erroneously to death by lethal

gas; the case was remanded to the circuit court for modification of

the sentence to death by lethal injection.               Id. at 1260.      Review

was again denied by the Supreme Court of the United States.                Hansen

v. Mississippi, 516 U.S. 986 (1995).


                                         3
     Hansen presented 17 issues in his July 1996 federal habeas

petition, adding another by supplement in early 1997.               In its

detailed opinion, the district court concluded five claims were

procedurally barred; in addition, it considered, and rejected, each

claim on the merits.       Hansen v. Puckett, No. 1:96cv60BrR (S.D.

Miss. 5 Aug. 1999) (unpublished) (Hansen-USDC).

                                    II.

     Hansen having filed his federal habeas petition after the 24

April 1996 effective date of the Antiterrorism and Effective Death

Penalty Act (AEDPA), that Act applies.         Lindh v. Murphy, 521 U.S.

320, 336 (1997).    Accordingly, Hansen must obtain a COA in order to

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

obtain a COA, he must make “a substantial showing of the denial of

a constitutional right”.        Id. § 2253(c)(2).       In general, Hansen

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”.        Slack v. McDaniel, 529

U.S. 473, 484 (2000) (internal quotation marks omitted). Restated,

for claims denied on the merits, Hansen must show “reasonable

jurists   would    find   the   district    court’s    assessment   of   the

constitutional claims debatable or wrong”.            Id.   But, for relief

denied on procedural grounds, Hansen must not only make the showing

described above concerning the merits of a claim, but also must


                                     4
show “jurists        of    reason   would         find    it   debatable    whether   the

district court was correct in its procedural ruling”.                           Id.

       Obviously, “the determination of whether a COA should issue

must be made by viewing [Hansen]’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, 121 S. Ct. 902 (2001).                    In that regard, concerning §

2254(d), when a claim has been adjudicated on the merits in state

court, a federal habeas court must defer to that decision unless it

“[is] contrary to, or involve[s] an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court

of    the   United   States;       or   ...       [is]    based   on   an   unreasonable

determination of the facts in [the] light of the evidence presented

in the State court proceeding”.                     28 U.S.C. § 2254(d)(1) & (2)

(emphasis added).

       For the § 2254 “contrary to” prong, a decision is “contrary to

[] clearly established Federal law, as determined by the Supreme

Court ... 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).         And, for the § 2254 “unreasonable application

of” prong, a decision “involve[s] an unreasonable application of []

clearly established Federal law, as determined by the Supreme Court


                                              5
... 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.   A state

court’s findings of fact are presumed correct unless the petitioner

rebuts that presumption by “clear and convincing evidence”.                        28

U.S.C. § 2254(e)(1).

      Hansen seeks a COA for each of six claims.                 He maintains the

district court:       (1) applied the wrong standard of review; (2)

erred in holding he was not denied effective assistance of counsel

at the penalty phase; (3) erred in concluding his Brady claim and

concomitant claim for resulting ineffective assistance of counsel

were procedurally barred and, in the alternative, without merit;

(4) misapplied Skipper v. South Carolina, 476 U.S. 1 (1986), in

upholding the exclusion of a social worker’s testimony at the

penalty     phase;   and   (5)   applied     the   wrong    legal     standard     in

concluding a Confrontation Clause violation was harmless error.

For   his   sixth    claim,   Hansen    contends     he    was    entitled    to    an

evidentiary hearing in district court.

                                        A.

      Hansen asserts that, in two respects, the district court

applied erroneous standards of review.

                                        1.

      First,   Hansen      contends    the   court   erred       by   applying     the

“reasonable jurists” standard of review announced in Drinkard v.


                                        6
Johnson, 97 F.3d 751, 769 (5th Cir. 1996), cert. denied, 520 U.S.

1107 (1997), a standard later rejected in Williams, 529 U.S. at

410.

       The district court referred in a footnote to the Drinkard

“reasonable jurists” standard.            Hansen-USDC, at 7 n.1.      That

standard, however, was not mentioned again or made part of the

court’s analysis.     Therefore, although the district court erred by

citing    Drinkard,   the   error   was   harmless,   and,   thus,   not   a

sufficient basis upon which to grant a COA.        Moore v. Johnson, 225

F.3d 495, 500 n.1 (5th Cir. 2000), cert. denied, 121 S. Ct. 1420

(2001).

                                     2.

       Hansen contends the district court also erred by applying §

2254(d)(1) to his ineffective assistance claims because, according

to Hansen, the Mississippi Supreme Court did not adjudicate those

claims on the merits, but summarily denied them, erroneously

applying the rule of collateral estoppel and failing to remand for

an evidentiary hearing or to make findings of fact.

       “‘Resolution on the merits’ is a term of art in the habeas

context that refers not to the quality of a court’s review of

claims, but rather to the court’s disposition of the case — whether

substantive or procedural.”      Green v. Johnson, 116 F.3d 1115, 1121

(5th Cir. 1997).      To determine whether a resolution was on the

merits, we consider:        what the state court has done in similar

                                     7
cases; whether the history of the case suggests the state court was

aware of any procedural grounds; and whether the state court’s

opinion suggests reliance upon procedural grounds.            Id.

      The   Mississippi     Supreme   Court   found   Hansen’s   ineffective

assistance claims meritless.          Hansen, 649 So. 2d at 1257.        The

court stated the issue was raised and rejected on direct appeal

(there,     the   issue   concerned   an   ineffective    assistance   claim

premised on claimed inadequate statutory attorney’s fees); it then

agreed with, and quoted, the ruling on direct appeal that “counsel

have pulled out all the stops, well exceeding the Strickland

standards”.       Id. at 1259 (quoting Hansen, 592 So. 2d at 153;

emphasis omitted).        Next, the court stated:      “Again, we conclude

there is no merit to these issues”.           Id. (emphasis added).

      Hansen’s ineffective assistance claims were resolved on the

merits by the state court.       Therefore, the district court did not

err by applying § 2254(d)(1) to them.

                                      B.

      Hansen maintains his trial counsel was ineffective by failing

at the penalty phase: to investigate mitigating evidence; and to

present psychological evidence concerning statutory mitigating

circumstances.      See MISS. CODE ANN. § 99-19-101(6).

      To establish ineffective assistance of counsel, Hansen must

satisfy the well known two prong standard:            counsel’s performance

was   deficient,      falling    below     an    objective    standard    of


                                       8
reasonableness;   and   this   deficient    performance   prejudiced   the

defense, such that there is a reasonable probability that, but for

counsel’s unprofessional errors, the outcome of the trial would

have been different. E.g., Strickland v. Washington, 466 U.S. 668,

687-88, 694 (1984).

                                    1.

     Regarding    the   claimed   failure   to   investigate   mitigating

evidence, Hansen maintains counsel failed to prepare witnesses and

to conduct an adequate investigation that would have uncovered

evidence of the mental and physical abuse inflicted on Hansen

during his childhood (childhood abuse).2

     The district court found counsel’s investigation was not

deficient; affording the required “heavy measure of deference” to

counsel’s strategic choices, it concluded: “even if he made a less

than complete investigation, the attorney’s reasonable professional

judgments support the limitations on investigation”.        Hansen-USDC,

at 19.    The court explained:           most of the seven mitigating

witnesses testified about Hansen’s childhood abuse; and any missing



     2
      Hansen also asserts such an investigation could have
uncovered additional mitigating evidence; in the district court,
however, he contended only that the investigation would reveal
evidence of his childhood abuse. We do not have jurisdiction to
consider aspects not presented in district court.      See, e.g.,
Goodwin v. Johnson, 224 F.3d 450, 459 n.6 (5th Cir. 2000) (“before
we may consider a petitioner’s application for a COA on a
particular issue, that petitioner must first submit his request to
the district court and have that request denied”), cert. denied,
121 S. Ct. 874 (2001).

                                    9
details were not sufficient to render counsel’s investigation

unreasonable.     Id. at 20.

      The district court also concluded that Hansen failed to show

his counsel did not adequately interview these witnesses.         Id.   It

explained: although, in his affidavit, Fred Weist (a social worker

from a Florida prison where Hansen had been incarcerated) stated he

never spoke to Hansen’s counsel about his testimony, he did not

purport to have knowledge of Hansen’s childhood; and, the other

witnesses’ affidavits show Hansen’s counsel interviewed them before

they testified.    Id.; cf. Leatherwood v. State, 473 So. 2d 964, 970

(Miss. 1985) (defense counsel did not interview witnesses before

they testified).

      In his habeas affidavit, Hansen’s trial counsel stated he “was

not able to put forward [his] best effort for the sentencing phase”

or “conduct in depth interviews of sentencing phase witnesses”.

The   Sixth   Amendment   requires   counsel   to   provide   “reasonable

professional services”. Hansen-USDC, at 20-21 (quoting Strickland,

466 U.S. at 687-88).           The district court concluded:       Hansen

received such services during the penalty phase; and the testimony

of witnesses not called would have been corroborative and largely

cumulative.     Id. at 21.

      Hansen has not shown reasonable jurists would disagree with

the district court.       Due to time pressure (his objection to the

trial date was overruled; sentencing began the day after the


                                     10
liability phase) and lack of investigative assistance (his request

for an investigator was denied), Hansen’s attorney was limited in

his investigation, learning about Hansen’s childhood abuse from

Hansen and relying upon Hansen to identify potential witnesses.

See Strickland, 466 U.S. at 691 (“[W]hen the facts that support a

certain potential line of defense are generally known to counsel

because of what the defendant has said, the need for further

investigation    may   be   considerably   diminished    or   eliminated

altogether”.); cf. Armstrong v. Dugger, 833 F.2d 1430, 1432-33

(11th Cir. 1987) (preparation for penalty phase consisted of

meeting once with petitioner, his mother and stepfather, and

speaking with his parole officer, the sole mitigating witness;

counsel explained lack of preparation not strategic but result of

inexperience).

     And, as noted, Hansen’s attorney interviewed and called seven

of those witnesses in mitigation, most of whom testified about

Hansen’s childhood abuse.      For example, in response to questioning

by Hansen’s counsel, Hansen’s father testified that Hansen’s mother

(who also testified) “took her unhappiness with [Hansen’s father]

out on [their] children”.      When asked how she accomplished that,

Hansen’s father answered:       “The kids had severe whippings with

leather belts or sticks, whatever might be close”.

     In   the   alternative,   the   district   court   concluded   trial

counsel’s claimed deficiencies did not prejudice Hansen.        Hansen-


                                     11
USDC, at 22.      It goes without saying that, because Hansen has not

shown reasonable jurists would find debatable or wrong the district

court’s assessment of Strickland’s deficiency prong, we need not

reach the prejudice prong.

                                        2.

     Hansen also claims trial counsel was ineffective for failing

to present psychological mitigating evidence.                He asserts counsel

did not direct Dr. Matherne, the independent psychologist appointed

to evaluate Hansen, to the statutory mitigating circumstances (for

example,   that    Hansen     committed      the   offense   while   “under   the

influence of extreme mental or emotional disturbance” or “under

extreme duress or under the substantial domination of another

person”,   as     discussed    infra;     or   that   Hansen’s    capacity    “to

appreciate the criminality of his conduct or to conform his conduct

to the requirements of law was substantially impaired”, see MISS.

CODE ANN. § 99-19-101(6)(b), (e)-(f) (emphasis added)). Hansen also

asserts counsel failed to direct Dr. Matherne to provide him with

any information about Hansen, and ignored mitigating evidence that

Dr. Matherne could have developed regarding Hansen’s personality

and the likelihood he was under the substantial domination of

Krecic.3


     3
      Hansen also asserts, for the first time on appeal, that
counsel was ineffective for failing to seek prison records that
would have revealed Hansen’s prescriptions for psychiatric
medications. For the reasons previously stated, we cannot consider
this new issue. Goodwin, 224 F.3d at 459 n.6.

                                        12
     The   district      court     noted:        trial    counsel     reviewed    the

psychological     report,     in    which      Dr.    Matherne     concluded   that,

regarding Hansen’s mental and emotional capacity at the time of the

alleged offense, Hansen satisfied the M’Naghten standard, see

Westbrook v. State, 658 So. 2d 847, 850 (Miss. 1995) (ability to

realize and appreciate nature and quality of deeds when committed

and distinguish between right and wrong); and, therefore, trial

counsel “felt it was not in [Hansen’s] best interest that Dr.

Matherne be called in this matter”. The district court also noted:

trial   counsel   explained        he   “did    not    specifically      direct   Dr.

Matherne to the mitigating circumstances listed in the capital

sentencing statute”, but “[i]f Dr. Matherne had reported that he

could testify in support of mitigation, [he] would have called him

as a witness in the sentencing phase”.                   Hansen-USDC, at 23-24.

     The district court concluded that, although trial counsel

complained   that      time   limitations       deprived     him    of   a   thorough

investigation     of    mitigating      psychological       factors,     “strategic

choices made after less than complete investigation are reasonable

precisely to the extent that reasonable professional judgments

support the limitations on investigation”. Id. at 24 (quoting Loyd

v. Whitley, 977 F.2d 149, 158 (5th Cir. 1992), cert. denied, 508

U.S. 911 (1993), and Strickland, 466 U.S. at 681 (“[l]imitations of

time and money ... may force early strategic choices, often based

solely on conversations with the defendant and a review of the


                                         13
prosecution’s evidence”)). “It is all too tempting for a defendant

to second-guess counsel’s assistance after conviction or adverse

sentence”, id.         (quoting Strickland, 466 U.S. at 689), where, as

here, the defense strategy was ultimately unsuccessful.                           That

strategy was urging jurors to vote for life imprisonment without

parole (counsel advised the jury in closing argument for the

penalty phase that Hansen confessed his prior convictions to the

trial court and wanted to be sentenced without the possibility of

parole), for which counsel began to prepare well in advance of

trial, including moving for the court’s permission to introduce

evidence of Hansen’s habitual criminal status.                   Cf. Williams, 529

U.S. at 395 (counsel did not prepare for sentencing until week

before trial).4

       The    district      court    also   determined    that     Hansen   was   not

prejudiced by any claimed deficiencies.                Hansen-USDC, at 25.        But,

again, because Hansen cannot show that reasonable jurists would

find       debatable   or    wrong    the   district     court’s    assessment     of

Strickland’s deficiency prong on this issue, we need not reach the

prejudice prong.

                                            C.

       4
      Citing Lockett v. Anderson, 230 F.3d 695, 714 (5th Cir.
2000), Hansen contends counsel should have been alerted by Dr.
Matherne’s test results that more investigation was needed. Hansen
did not raise this issue in the district court, asserting instead
only that Hansen’s attorney was ineffective in failing to call Dr.
Matherne at sentencing. We, thus, cannot consider this new claim.
Goodwin, 224 F.3d at 459 n.6.

                                            14
      Hansen claims the district court held improperly that two of

his   claims   were    procedurally    barred   and,   alternatively,    were

without merit:        that the State’s suppression of a statement by

Barbara Duncan, a cell mate of Krecic, violated Brady v. Maryland,

373 U.S. 83 (1963), and Hansen’s due process rights; and that,

concomitantly, the Brady violation rendered his trial counsel

ineffective.     Duncan’s recorded and transcribed statement informed

law enforcement officers that, inter alia, she overheard Krecic:

tell a man, “I am the one that killed ....”; and tell others that

Hansen would do whatever Krecic said.

      Hansen contends the district court erred:               by making no

finding   that    the    Mississippi       Supreme   Court   regularly   and

consistently applies the procedural bar in cases, such as this,

where the underlying facts are outside the trial record and not

readily discoverable at time of trial; and by not considering

Duncan’s affidavit in determining whether the suppression of her

statement was material.

      The district court applied the procedural bar found in § 99-

39-21(1) of the Mississippi Code, concluding Hansen did not meet

the “cause and prejudice” or “actual innocence” exceptions because:

his counsel could have raised the claim on direct appeal; and

Hansen did not show that it is more likely than not that no

reasonable juror would have found him guilty beyond a reasonable

doubt in the light of all the evidence, including Krecic’s alleged


                                      15
statements overheard by Duncan.    Hansen-USDC, at 33; see MISS. CODE

ANN. § 99-39-21(1) (“Failure by a prisoner to raise ... issues or

errors either in fact or law which were capable of determination at

trial and/or on direct appeal ... shall constitute a waiver thereof

and shall be procedurally barred.”)      In addition, the court also

considered the merits of the Brady claim and held the exculpatory

value provided by Duncan’s statement was not sufficient, in the

light of all the contrary evidence, to undermine confidence in the

jury’s verdict.   Hansen-USDC, at 40-41.

                                  1.

     In support of his contention that the Mississippi Supreme

Court does not consistently apply the § 99-39-21(1) procedural bar,

enacted in 1984, Hansen cites Malone v. State, 486 So. 2d 367

(Miss. 1986), and Read v. State, 430 So. 2d 832 (Miss. 1983).       In

Malone, the petitioner, on application for post-conviction relief,

asserted there was a plea bargain agreement between the prosecution

and its star witness that had not been disclosed pre-trial.       486

So. 2d at 368.     Concluding the petitioner made a prima facie

showing there was such a plea agreement, the Mississippi Supreme

Court remanded the case to the trial court for an evidentiary

hearing on the issue; the court did not cite, much less discuss,

the § 99-39-21(1) procedural bar.      Id. at 369.   We, thus, have no

way of knowing whether the petitioner could have raised his Brady

claim on direct appeal.   Moreover, in Malone, the issue was whether

                                  16
the plea bargain even existed pre-trial.       On the other hand,

Hansen’s attorney knew about Duncan’s statement in April 1988,

approximately five months after trial and more than two years

before he filed his direct appeal.

     In Read, rendered prior to the enactment in 1984 of the § 99-

39-21(1) procedural bar, the Mississippi Supreme Court concluded

that a petitioner is not precluded from raising an ineffective

assistance of counsel claim in a post-conviction proceeding even

though he raised the same claim on appeal.   430 So. 2d at 841.   But

in the case at hand, as noted by the district court, Hansen did not

raise on appeal this ineffective assistance of counsel claim. And,

although the procedural bar does not apply to an ineffective

assistance of counsel claim when the petitioner is represented by

the same counsel at trial and on appeal, Martin v. Maxey, 98 F.3d

844, 848 (5th Cir. 1996), Hansen does not contend his trial counsel

was ineffective as a result of his own error or omission; instead,

Hansen claims counsel was rendered ineffective by the State’s

suppressing Duncan’s statement.    Cf. Strickland, 466 U.S. at 687.

     Hansen has not shown Mississippi’s procedural bar is not

regularly applied to “classes of claims” such as his.   Cf. Sones v.

Hargett, 61 F.3d 410, 417 (5th Cir. 1995).    Therefore, jurists of

reason would not find it debatable whether the district court was

correct in applying the bar.




                                  17
                                      2.

      In the alternative, we consider Hansen’s claim that the

district court erroneously: concluded trial counsel’s strategy was

not adversely affected, particularly at the penalty phase; and

refused to consider Duncan’s affidavit in determining whether the

suppression of her statement was material.                In support of this

claim, Hansen challenges the following decision by the district

court to not consider Duncan’s affidavit: “[T]he transcript of the

interview [of Duncan] by the two officers is the subject of the

Brady claim, not Duncan’s affidavit statements.                Therefore, the

contents    of   the    affidavit   are     not    relevant   to   the   Court’s

determination”.        Hansen-USDC, at 34.

      Hansen asserts:       Duncan’s affidavit demonstrates she would

have given testimony that Krecic manipulated Hansen; and this

mitigating evidence is sufficient to undermine confidence in the

death penalty imposed by the jury.                See MISS. CODE ANN. § 99-19-

101(6)(e) (jury to consider as one of the mitigating factors

whether a defendant “acted under extreme duress or under the

substantial domination of another person”).

      To prevail under Brady, Hansen must show:            Duncan’s statement

was   not   disclosed;     it   contained    favorable    evidence;      and   the

evidence was “material”.        E.g., Wilson v. Whitley, 28 F.3d 433, 435

(5th Cir. 1994), cert. denied, 513 U.S. 1091 (1995).               Evidence is

“material” if there is a reasonable probability that, had it been


                                      18
disclosed, the result of the trial would have been different.                   Id.

at 434. “The materiality of Brady material depends almost entirely

on the value of the evidence relative to the other evidence

mustered by the state.”            Id. at 439 (internal quotation marks

omitted).

       The transcript included statements by Duncan:                    that she

overheard Krecic tell others Hansen would do whatever Krecic said;

and that, before Officer Ladner was shot, Krecic told Hansen to

“‘Shoot the bitch.       Shoot the bitch’”.           The district court found

that   any   mitigating    value     of    this      evidence   was   “less   than

crystalline” and not sufficient to undermine confidence in the

jury’s verdict.        Id. at 41.     Furthermore, it concluded that any

mitigating value was cumulative because other mitigating witnesses

had testified Krecic was “the leader” of Hansen.                Id.

       Regarding Hansen’s contention that the district court erred by

not considering Duncan’s affidavit regarding Krecic’s manipulation

of Hansen, the district court did consider this evidence and its

effect on the verdict, albeit via the transcript of Duncan’s

earlier statement, rather than Duncan’s affidavit.                Hansen has not

shown that reasonable jurists would find debatable or wrong the

district court’s assessment that the evidence was not material.

                                          D.

       Hansen   next    contends    that       the   district   court   erred   in

upholding the exclusion of future-behavior-testimony by Fred Weist,


                                          19
the social worker who counseled Hansen for several months between

August 1981 and April 1982 (approximately five years before the

murder) at a prison in Florida, where Hansen was then incarcerated.

In Lockett v. Ohio, the Supreme Court held:

          [T]he Eighth and Fourteenth Amendments require
          that the sentencer, in all but the rarest kind
          of capital case, not be precluded from
          considering, as a mitigating factor, any
          aspect of a defendant’s character or record
          and any of the circumstances of the offense
          that the defendant proffers as a basis for a
          sentence less than death.

438 U.S. 586, 604 (1978) (emphasis in original; footnote omitted).

     Specifically, Hansen asserts the district court misapplied

Skipper v. South Carolina, 476 U.S. 1 (1986).   At issue in Skipper

was whether the exclusion of testimony regarding petitioner’s good

behavior during his pre-trial time in jail deprived him of his

right to present relevant mitigating evidence.     Id. at 4.   The

Court concluded such evidence could not be excluded.    Id. at 5.

     At the penalty phase of Hansen’s trial, the court sustained

the State’s objections to questions regarding future events:   “Do

you think [Hansen] would adapt well in prison life?”; and “[D]o you

think [Hansen] is treatable in any prison setting?”.    Stating it

was overruling the State’s objection to questions regarding past

events and, thus, admitting Weist’s testimony as to Hansen’s

peaceful, helpful disposition during his previous incarcerations,

the trial court ruled that questioning Weist about future events

was speculative and invaded the province of the jury.

                                20
      The Mississippi Supreme Court agreed.           It did so on the basis

that the record failed to reflect Weist was qualified or accepted

as an expert in predicting future behavior.             Hansen, 592 So. 2d at

147 (citing MISS. R. EVID. 702).

      The district court concluded that Skipper does not require the

trial court to admit speculative, opinion testimony by a non-expert

witness     concerning     a   petitioner’s    future    behavior   in     jail.

Skipper, 476 U.S. at 6 (“Defense counsel was not offering opinion

testimony regarding future events.”).

      Hansen has not shown that reasonable jurists would find the

district court’s ruling debatable or wrong.

                                      E.

      Hansen contends the district court misapplied the standard of

Brecht v. Abrahamson, 507 U.S. 619, 629, 638 (1993) (internal

quotations omitted) (whether, for federal habeas relief purposes,

“trial     error”   constitutional       violation    “had   substantial    and

injurious effect or influence in determining the jury’s verdict”),

by   concluding     a    Confrontation     Clause    violation   nevertheless

constituted harmless error.

      This contention concerns the following cross-examination of

Krecic by the State:

      Q.     Do you recall giving a statement to Sergeant Dean
             Shephard in Gulfport, Mississippi on April the 11th of
             this year [1987]?

      A.     I’m claiming the Fifth Amendment.


                                      21
      Q.    Do you recall telling the officer that, quote, you know
            who did it, it wasn’t me?

      A.    I’m claiming the Fifth Amendment.

      Q.    Do you remember that that answer was in response to the
            question about who had shot the highway patrolman?

      A.    I’m claiming the Fifth Amendment.

Hansen contemporaneously objected.

      On appeal, the Mississippi Supreme Court ruled there had been

a   Confrontation    Clause    violation;    but,    applying   Chapman    v.

California, 386 U.S. 18 (1967), it concluded:          in the light of all

the evidence, the constitutional error was “harmless beyond a

reasonable doubt”.     Hansen, 592 So. 2d at 135-37.

      Citing 28 U.S.C. § 2254(d), the district court held the

Mississippi Supreme Court’s ruling was neither contrary to, nor

involved,   an   unreasonable    application   of,    clearly   established

federal law.     Hansen-USDC, at 12.        Agreeing that the State had

violated the Confrontation Clause, the district court performed its

own harmless error review under the Brecht standard, and concluded:

“the error did not result in actual prejudice and did not have a

‘substantial and injurious effect or influence in determining the

jury’s verdict’”.     Id. at 13 (quoting Brecht, 507 U.S. at 638).

The district court reasoned:          the questions regarding Krecic’s

alleged statement were few; the statement was exculpatory and did

not directly incriminate Hansen; and the “statement did not recite

‘in   considerable    detail    the    circumstances     leading   to     and


                                      22
surrounding the alleged crime’ and did not provide a ‘crucial link

in the proof’”.     Id. (quoting Douglas v. Alabama, 380 U.S. 415,

417, 419 (1965)).

     Moreover,    adopting   the   following   facts   found   by   the

Mississippi Supreme Court to be indicative of Hansen’s guilt, the

district court determined that other evidence “overwhelmingly”

supported finding guilt:

          To begin with, all of the evidence shows two
          persons, a young man and a young woman, with
          [State Trooper] Ladner along I-10 on the
          evening of April 10, 1987.           Reasoning
          backwards, we know Hansen was the man because
          (a) Daisy Morgan identified Hansen as the man
          who, a short while later, arrived with a
          female companion in a Highway Patrol car, and
          stole Morgan’s Ford Ranger; (b) Pat Ladner
          identified Hansen as the man who arrived at
          his house later that evening with a female
          companion; (c) Jody Wade and Charlie Williams
          identified Hansen whom they took, with Krecic,
          first to the Ladners’ [home] and thereafter
          toward Waveland; (d) State Troopers Freddie
          Keel and Darryl Deschamp identified Hansen as
          the man they took into custody while en route
          to Waveland with Wade and Williams; and (e)
          Critically, Troopers Keel and Deschamp found
          on Hansen — some six hours after Ladner had
          been shot — (1) the MHSP standard issue .357
          Magnum which had been checked out to Ladner
          and (2) a .38 caliber handgun — the bullet
          removed from Ladner’s neck had been fired from
          a .38 caliber gun.

               If this be not enough, we return to April
          10’s early evening hours and find that (f)
          Kathy Romany, who had followed the blue town
          car westward along I-10 all the way from
          Florida, identified Hansen as the driver; (g)
          William Forrest Runnels and Charles E.
          Childress, both motorists passing by, said
          they saw a blue town car, a state trooper’s

                                   23
          car, and a man and a woman and, of importance,
          that they saw the man stuffing a large pistol
          into his pants; (h) Steve Diaz identified
          Hansen as the man he saw standing over the
          wounded and bleeding state trooper and as the
          man who drove away in the trooper’s car; and
          (i) Paul Tibbetts and Donald Ray Meche each
          made an in-court identification of Hansen as
          the man who shot and killed Trooper Ladner.

               If the cake need icing, (j) Clydell
          Morgan testified that he found Hansen’s left
          thumbprint on the consent to search form,
          Hansen’s left little fingerprint on the map,
          and a right palmprint on another incriminating
          document. Add to this (k) the absence of the
          slightest shred of evidence that Krecic pulled
          the trigger, and we have in the record,
          acceptable of consideration by reference to
          the Court’s instructions to the jury, evidence
          that overwhelms.

Hansen-USDC, at 13-14 (alterations in original; quoting Hansen, 592

So. 2d at 136-37).

     The district court concluded:    “In light of the record taken

as a whole, the Court finds that the prosecution’s violation of

[Hansen’s] rights under the Confrontation Clause did not have a

‘substantial and injurious effect or influence in determining the

jury’s verdict’”.     Id. at 14 (quoting Brecht, 507 U.S. at 638).

Reasonable jurists would not find this application of       Brecht

debatable or wrong.    See Brecht, 507 U.S. at 638-39.5



     5
      In Tucker v. Johnson, 242 F.3d 617, 629 n.16 (5th Cir.),
cert. denied, 2001 WL 744253 (5 Sep. 2001), our court noted the
doubt expressed regarding whether the Brecht standard is still
viable post-enactment of AEDPA. The parties have not briefed the
issue. In any event, because Hansen has not shown he is entitled
to relief under either standard, we need not decide it. See id.

                                 24
                                      F.

     Hansen’s last claim is that he was entitled to an evidentiary

hearing.

                                      1.

     Subject to the exceptions stated in 28 U.S.C. § 2254(e)(2), if

a petitioner failed in state court to develop the factual basis of

a claim, the federal court may not hold an evidentiary hearing on

that claim.   Such failure is not established unless there is          “lack

of diligence, or some greater fault, attributable to the prisoner

or the prisoner’s counsel”. (Michael) Williams v. Taylor, 529 U.S.

420, 432 (2000).

     Hansen contends that, in state court, he presented facts

supporting    the   following    claims:   (1)    his   trial   counsel   was

ineffective    in   failing     to   properly    investigate    and   present

mitigating evidence; (2) his trial counsel was ineffective in

failing to present psychological evidence at the penalty phase; (3)

the State’s refusal to provide his trial counsel with his Florida

prison records violated Brady; and (4) the State’s suppression of

Duncan’s statement violated Brady. (Each claim is discussed supra,

except for (2), concerning prison records.)             The State does not

assert that Hansen failed in state court to develop the factual

basis for these claims.

     Nevertheless, citing McDonald v. Johnson, 139 F.3d 1056, 1058-

60 (5th Cir. 1998), Hansen contends AEDPA’s presumptions and


                                      25
limitations   concerning   state   court     findings   and   evidentiary

hearings in district court do not apply when the state court does

not conduct an evidentiary hearing.         See 28 U.S.C. § 2254(e)(1)

(presumption of correctness accorded state court fact finding).

Hansen misreads McDonald; it stands for the proposition that a

petitioner does not “fail” to develop a factual basis for his claim

when a state court finds the claim procedurally barred.              The

Mississippi Supreme Court applied a procedural bar only to Hansen’s

claim regarding the State’s suppression of Duncan’s statement; the

court found the other claims meritless.

     Hansen did request an evidentiary hearing in the state court

on the other claims.    Although “[m]ere requests for evidentiary

hearings will not suffice”, Dowthitt v. Johnson, 230 F.3d 733, 758

(5th Cir. 2000), cert. denied, 121 S. Ct. 1250 (2001), Hansen was

diligent in procuring affidavits in support of each of his claims.

Cf. id.   Accordingly, Hansen did not fail in state court to develop

the factual basis of his claims.        Therefore, he was not precluded

by § 2254(e)(2) from seeking an evidentiary hearing in district

court.

                                   2.

     The denial of an evidentiary hearing is reviewed for abuse of

discretion.    Clark v. Johnson, 227 F.3d 273, 284-85 (5th Cir.

2000), cert. denied, 121 S. Ct. 1129 (2001).            It goes without

saying that, when a district court has “sufficient facts before it


                                   26
to make an informed decision on the merits of [the petitioner’s]

claim, it does not abuse its discretion in failing to conduct an

evidentiary hearing”.       Barrientes, 221 F.3d at 770 (internal

quotation marks omitted).    To find an abuse of discretion, we must

be convinced that, if proven true, petitioner’s allegations would

entitle him to relief.    Clark v. Johnson, 202 F.3d 760, 766 (5th

Cir.), cert. denied, 531 U.S. 831 (2000).    The district court did

not abuse its discretion by denying an evidentiary hearing.

                                  a.

     As discussed supra, based upon our review of the record,

including the exhibits submitted in support of his petition, we

conclude that Hansen has alleged no fact which, if proved, would

entitle him to relief on his ineffective assistance claims or his

Brady claim regarding Duncan’s statement.

                                  b.

       Regarding the other Brady claim (alleged suppression of

Hansen’s Florida prison records), Hansen has not shown the district

court erred in concluding the State was not under a duty to

disclose those records.      See Hansen-USDC, at 28 (citing United

States v. Ellender, 947 F.2d 748, 757 (5th Cir. 1991)).

                                 III.

     In sum, for each of his claims, Hansen has failed to make the

showing required by 28 U.S.C. § 2253(c)(2) for obtaining a COA:   he

has failed to demonstrate either that “reasonable jurists could

                                  27
debate whether” his habeas “petition should have been resolved”

differently or that the claims he has raised at least “were

adequate to deserve encouragement to proceed further”.   Slack, 529

U.S. at 484 (internal quotation marks omitted). Accordingly, a COA

is

                                                         DENIED.




                               28
