                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit



                               No. 02-10252


                             BOBBY LEE HINES,

                                                  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, Dallas Division
                             (3:99CV-0575-G)
                            December 31, 2002


Before EMILIO M. GARZA, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

      Bobby Lee Hines was convicted of capital murder and sentenced

to death by the Texas state courts for the murder of Michelle Wendy

Haupt.     He   now    petitions   this   court   for   a   Certificate   of

Appealability (COA) to pursue his habeas corpus claims as required


  *
   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opinion should not be published and is not precedent except under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.

                                     1
by 28 U.S.C. § 2253(c)(1) for claims denied by the district court.

Specifically, Hines argues that reasonable jurists would find

debatable the district court’s conclusions that (1) the trial court

did not err in denying Hines a continuance to allow his expert to

conduct DNA testing, and (2) that the state habeas court did not

err in failing to appoint a DNA expert to aid Hines in preparing

his state habeas application.   Hines also argues that the district

court erred in not giving him funds for an independent DNA test

during his federal habeas proceeding as it is permitted to do under

21 U.S.C. § 848(q).1   For the reasons below we deny petitioner all

relief sought.

                  I. FACTS AND PROCEDURAL HISTORY

      On October 19, 1991, Mary Ann Linch went to the apartment of

her friend Michelle Wendy Haupt in Carrollton, Texas to spend the

weekend.   Linch brought with her a Marlboro cigarette carton in

which only four packs remained.   She had purchased the cigarettes

at Brookshires’ in Corsicana, Texas, and the carton contained a

stamp showing “Brookshires’ Store” on the side.     Linch left the

carton at Haupt’s when they left that evening to go to a nightclub.

Linch had intended to return to Haupt’s, but instead spent the

night with another friend.

      Linch testified that when they went to the club, Haupt was

wearing a gold sand-dollar charm necklace which she always wore.

  1
   Hines does not need a COA to pursue this claim.       Fuller v.
Johnson, 114 F.3d 491, 501 n.4 (5th Cir. 1997).

                                  2
During the evening, Haupt became ill.         Another friend drove Haupt

back to her apartment and then left.           He testified that Haupt

locked the door behind him.

     Meanwhile,    at   Haupt’s   apartment    complex,   Hines   appeared

uninvited at a party.     When the hostess asked him who he was, he

identified himself as the brother of the apartment manager.            He

told another guest that he was part of the maintenance crew at the

complex.   He pulled out a ring of keys and stated that he could get

into any apartment he wanted to at any time.

     At approximately 6:00 a.m. on October 20, 1991, Haupt’s next-

door neighbor heard a woman screaming.        He could not determine the

source of the screams, but his wife called the police.         Two police

officers were dispatched to the scene, but the screaming had ended

before they arrived.     After inspecting the premises, the officers

could not determine where the screams had come from and they

eventually left.    Two other residents in the apartment directly

below Haupt’s also heard screaming loud enough to awaken them.        One

of the residents testified that he also heard other loud noises

that sounded “like a bowling ball being dropped on [Haupt’s]

floor.” He heard this noise at least 20 times.             The screaming

lasted for approximately 15 minutes.      The resident of an adjacent

downstairs apartment also heard the screaming.

     Just before noon that morning, the residents discussed what

they had heard and became concerned for Haupt.            Eventually, the

apartment leasing manager was persuaded to check Haupt’s apartment.

                                    3
After knocking and receiving no answer, the manager opened the door

and saw Haupt lying on the floor just inside the door.     The cord

was around her neck, her face was black, and she appeared to be

dead.    The manager had someone call an ambulance.

     Haupt was found dressed in only a robe and lying face up on

the floor.    There were puncture wounds to her chest area and the

cord from the stereo was wrapped around her neck.      The robe was

stained with blood, but it had no holes to correspond with the

puncture wounds to Haupt’s body, indicating the robe was placed on

her body after the wounds were inflicted.   Further, the belt to the

robe was tied tighter than a person would normally tie it against

her own body.    An object appearing to be an ice pick was found on

the nearby couch.    Hines’ fingerprint and bloody palm print were

found within the apartment.

     Dr. Jeffrey Bernard, the Dallas County Chief Medical Examiner,

testified that the cause of Haupt’s death was strangulation and

puncture wounds.    She had stereo speaker wire drawn tightly around

her neck, abrasions to her neck and jaw, contusions on her neck and

a fractured hyoid bone.    She had approximately 18 puncture wounds

to her chest, right flank area, her back, the interior wall of her

vagina, her left upper extremity, and her right thigh. She further

had rectal tears with hemorrhaging. Barnard testified that the

puncture wounds could have been made by the object found on the

couch.

     Later the same day, Hines was found to be in possession of

                                  4
Haupt’s gold sanddollar charm.                 He had blood on some of his

clothing, as well as scratches under his eye, and on his neck and

cheek.        Other    objects    from    Haupt’s    apartment,     including      the

Brookshires’ cigarette carton, were found under the couch where

Hines had been sleeping.

      Hines was convicted of capital murder on March 19, 1992, and

sentenced to death.             His direct appeal was denied by the Texas

Court of Criminal Appeals in May 1995 in an unpublished opinion.

Hines    v.     State,    No.    71,442    (Tex.    Crim    App.   May    10,     1995)

(unpublished). His state habeas application was also denied by the

Texas Court of Criminal Appeals in another unpublished opinion. Ex

Parte Hines, No. 40,347-01 (Tex. Crim. App. 1999) (unpublished).

The federal district court for the Northern District of Texas then

denied Hines’ federal habeas relief, as well as his request for a

COA to our court.

                             II. STANDARD OF REVIEW

      A habeas petitioner cannot appeal the denial of habeas relief

from the district court unless he obtains a COA.                         28 U.S.C. §

2253(c)(1).       Since Hines filed his habeas application after April

24,     1996,    the     rules    for    COA   review      are   governed    by    the

Antiterrorism and Effective Death Penalty Act (AEDPA).                      Lindh v.

Murphy, 521 U.S. 320, 336 (1997).                  “Under AEDPA, a COA may not

issue unless ‘the applicant has made a substantial showing of the

denial of a constitutional right.’” Slack v. McDaniel, 529 U.S.



                                           5
473, 483 (2000) (citing 28 U.S.C. § 2253(c)(2)).     “Where a district

court has rejected the constitutional claims on the merits, the

showing required to satisfy § 2253(c) is straightforward: The

petitioner must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable

or wrong,” or, at least, that the “issues presented were adequate

to deserve encouragement to proceed further.”      Id. at 484; Moore v.

Johnson, 225 F.3d 495, 500 (5th Cir. 2000).      Although the nature of

the penalty in a capital case is an appropriate consideration in

evaluating a COA application, “the severity of the penalty does

not, in and of itself, require the issuance of a COA.       However, in

capital cases, doubts as to whether a COA should issue must be

resolved in favor of the petitioner.”      Clark v. Johnson, 202 F.3d

760, 764 (5th Cir. 2000) (citations omitted); Lamb v. Johnson, 179

F.3d 352, 356 (5th Cir. 1999).

     To obtain habeas relief, a petitioner must either demonstrate

that the state court’s decision “was contrary to . . . clearly

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

United States,” or “involved an unreasonable application of . . .

clearly established Federal law, as determined by the Supreme Court

of the United States.”    Williams v. Taylor, 529 U.S. 362, 412-13

(2000).   A   state   court’s   decision   is   “contrary   to”   clearly

established federal law if it “arrives at a conclusion opposite to

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



                                   6
the state court decides a case differently than this Court has on

a set of materially indistinguishable facts.”         Id. A state court’s

decision is an “unreasonable application” of federal law “if the

state court identifies the correct governing legal principle from

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

principle to the facts of the prisoner’s case.”                Id.   A state

court’s determination of factual issues are presumed correct and

the applicant bears the burden of rebutting the presumption with

clear and convincing evidence.

                          III.   TRIAL CONTINUANCE

     Hines first seeks a COA for his claim that the trial court

violated his constitutional right to due process and effective

assistance of counsel by denying him a trial continuance following

jury selection to allow his DNA expert, Dr. Arthur J. Eisenberg, to

conduct independent testing of blood samples found on Hines’ pants

and underwear.      The    government     subjected   those    samples   to   a

serology test that found the blood contained A antigens, and

therefore could not have come from the victim.                The subsequent

government DNA test matched the blood sample with the victim’s,

however, and Hines sought a ten-week continuance to conduct an

independent DNA test to resolve this discrepancy.             The trial court

denied this continuance, and Hines now argues this denial was

unconstitutional.

     When a denial of a continuance is the basis of a claim for



                                      7
habeas relief, for relief to be granted not only must the trial

judge have abused his discretion, but the denial must have been “so

arbitrary and fundamentally unfair that it violates constitutional

principles of due process.”       Hicks v. Wainwright, 633 F.2d 1146,

1148 (5th Cir. 1981).       Here, petitioner claims that the denial

violated his due process right to present an effective defense as

guaranteed in Ake v. Oklahoma, 470 U.S. 68, 76-77 (1985).           In Ake

the Supreme Court held a criminal defendant’s due process rights

include the right to expert assistance where such help is necessary

to give indigent defendants “an adequate opportunity to present

their claims fairly within the adversary system.”               Id. at 77,

quoting Ross v. Moffit, 417 U.S. 600, 612 (1974).             Hines argues

that by denying the continuance, the trial court robbed him of his

ability to effectively use Dr. Eisenberg, thereby depriving him of

the opportunity to mount an adequate defense.

     The Texas state courts and the district court offer compelling

reasons why this claim fails.            First, the state habeas court

concluded that Hines did in fact receive expert assistance as

required by Ake.      Dr. Eisenberg testified at trial about the

shortcomings in the prosecution’s DNA evidence, including the

inconsistency with the serology test results, as well as the fact

that the DNA test could not exclude that the blood on Hines’

clothes was that of his roommate Jimmy Knight.           Dr. Eisenberg also

assisted   the   defense   in   preparation   of   its   cross-examination



                                     8
questions, including questions to the State’s serologist Michele

Skidmore that attempted to discredit her theory that the A antigens

came from Hines’ sweat. Thus, even without additional testing, the

state habeas court concluded the defense was able to use Dr.

Eisenberg to raise reasonable doubt in juror’s minds about the

state’s blood evidence.

     Hines fails on appeal to introduce evidence that suggests this

conclusion     of    the    state     habeas   court   was    an     unreasonable

application of or contrary to established Supreme Court precedent.

Hines argues that had Dr. Eisenberg conducted additional testing,

it would have provided evidence consistent with the theory that

Hines is innocent, and inconsistent with the government’s test

results.      While such speculative benefits are possible, Hines

forgets the admonishment of the Court in Ake that the state need

not buy the indigent defendant all the assistance a wealthy man

might get.    Ake, 470 U.S. at 77.           Rather, the test is whether the

defendant was given an adequate opportunity to present his claims

at   trial.         Here,   Dr.     Eisenberg’s   testimony        regarding   the

shortcomings in the state’s DNA evidence, as well as his assistance

in drafting cross-examination questions of the state’s DNA and

serology witnesses, gave Hines such an opportunity.                   Thus, Hines

fails to develop the factual or legal basis of a valid Ake claim.

     Assuming       arguendo   that    Eisenberg’s     assistance     to   defense

counsel was somehow inadequate, Hines has not demonstrated that he

had the constitutional right to further DNA testing.                        As we

                                         9
explained in Yohey v. Collins, 985 F.2d 222, 227 (5th Cir. 1993)

non-psychiatric experts should be provided only if the evidence is

“both critical to the conviction and subject to varying expert

opinion.”     Id. (citations omitted).         In denying Hines’ claim on

direct appeal, the Texas Court of Criminal Appeals concluded that

petitioner failed to establish that additional DNA testing met the

second prong of this test.            It explained that Hines did not

introduce evidence suggesting that further testing would produce a

contrary result. In reaching this conclusion the state court noted

that    Dr.   Eisenberg   had    testified    that   he   believed   that   the

government’s     tests    were    conducted    using      proper   procedures,

suggesting further DNA testing would not produce different results.

In finding this conclusion was not an unreasonable application of

or contrary to established Supreme Court precedent, the district

court added its own doubt that prong 1 of the test had been met,

concluding that evidence as to the source of the blood on Hines’

clothes was not “critical” to his conviction.              The district court

came to this conclusion after considering the volume of other

evidence against Hines, including his bloody palm print on Haupt’s

wall.

       Hines argues that reasonable jurists would debate both of

these conclusions.        As to the former, Hines claims that the

inconsistencies between the government DNA results and the serology

report were sufficient to suggest that the results of a second DNA

test might be different than the first.         As to whether the evidence

                                      10
was “critical” to conviction, Hines argues that contrary DNA

evidence would have given him three benefits critical to his

defense.      First,     the     testing    might   have     established      the

government’s DNA evidence was too unreliable to be admitted.2

Second, the    test     could   have   impeached    Dr.    Robert    Giles,   the

government DNA expert.          Finally, the results could have created

rebuttal    evidence    consistent     with   the   theory    that    Hines   is

innocent.

      Hines’ arguments do not lead us to believe that reasonable

jurists would debate the district court’s conclusions.                    To be

entitled to non-psychiatric expert assistance a defendant must show

something more than a mere possibility that the desired assistance

will be helpful.       Yohey, 985 F.2d at 227.      In this case Hines has

not shown that there is more than the mere possibility that

additional DNA testing would produce different results.               Given the

testimony of Skidmore that the contrary serology results were

caused by Hines’ sweat, those results are insufficient to suggest

that further DNA tests would produce a different result.               Further,

as the state court on direct appeal noted, defendant’s expert

admitted that the state procedures for the DNA test were adequate.


  2
   Under Texas Rule of Criminal Evidence 702, expert testimony is
only admissible if it is reliable and on balance is of assistance
to the trier of fact. Kelly v. State, 824 S.W.2d 568, 572 (Tex.
Crim. App. 1992). Such evidence is reliable if (a) the underlying
scientific theory is valid; (b) the technique applying the theory
is valid; and (c) the technique was properly applied in the case in
question. Id. at 573.

                                       11
This suggests that a second test likely would have produced the

same results.

      Hines has also not shown that the evidence from the second DNA

test would have been critical evidence at trial.    As the district

court correctly noted, the State has other scientific evidence

tying Hines to Haupt’s apartment, including his bloody palm print

on her wall.    Additionally, the State had circumstantial evidence

linking Hines to Haupt, as he had her belongings in his possession.

Thus, the DNA link of Haupt to Hines’ clothes does not seem

critical to the conviction.   Moreover, even if the additional test

produced contrary results, it would not have resulted in exclusion

of the government’s DNA test, as by defendant’s own admission the

government DNA test used proper techniques.3   At most it would have

produced   additional   impeachment   evidence.4   Given   that   Dr.

Eisenberg already presented such evidence, we cannot conclude that

  3
   As noted above, the test for reliability for admission of expert
testimony is whether (a) the underlying scientific theory is valid;
(b) the technique applying the theory is valid; and (c) the
technique was properly applied in the case in question. Kelly, 824
S.W.2d at 573. As DNA evidence meets the first two prongs of this
test in Texas, id. at 574, and defendant’s expert admits it was
properly applied here, the evidence would have been admissible
regardless of contrary test results produced by Eisenberg.
  4
   Hines argues that a DNA test showing the blood on his clothes
was not Haupt’s would be independent evidence of his innocence. He
argues that the blood was instead that of his roommate Jimmy
Knight.    But Hines has failed to explain how the fact that the
blood belonged to Jimmy Knight, or anyone else other than Haupt for
that matter, would exonerate him, as such evidence is in no way
probative of innocence.   At most, it would discredit one piece of
the government’s case, which when considered in the context of the
volume of other evidence against Hines, is not critical.

                                 12
additional impeachment evidence meets the “critical” threshold.

     Accordingly, Hines’ request for a COA on this claim is denied.

                      IV. STATE HABEAS ERRORS

     Hines next seeks a COA for his claim that the state habeas

court erred by not hiring him a DNA expert to assist in preparation

of his claim, thereby depriving him of due process and effective

assistance of counsel.   The district court denied Hines relief on

this claim on alternative grounds.   First, it addressed the merits

of the claim, and concluded it was not unreasonable for the state

court to deny Hines access to an expert to develop his claims.    In

the alternative, the district court held that the claim of error in

the state habeas proceeding was not cognizable on federal habeas,

as the claim was an attack on a proceeding collateral to the

detention rather than the detention itself.

     Errors and deficiencies in state habeas proceedings cannot

form the basis of relief in a federal habeas application.   Trevino

v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999).        Hines argues

reasonable jurists would debate the district court’s application of

this straightforward rule because the Texas state constitution

guarantees petitioners the right to “competent counsel” in state

habeas proceedings.   This state created right to habeas counsel

creates a federal constitutional right to effective counsel, Hines

reasons.

     Hines’ argument is unavailing, as we rejected this exact



                                13
argument in In re Goff, 250 F.3d 273 (5th Cir. 2001).       There we

explained that under Pennsylvania v. Finley, 481 U.S. 551 (1987),

states that choose to provide petitioners counsel in state post-

conviction proceedings are not obligated to ensure that counsel

meets constitutional minimums for defense attorneys at trial or on

direct appeal.    In re Goff, 250 F.3d at 275.       The reason, we

explained, was that, “the Constitution does not put the State to

the difficult choice between affording no counsel whatsoever,” or

following strict constitutional guidelines for the counsel it

provides.   Id., quoting Finley, 481 U.S. at 559.     Thus, as Texas

was under no obligation to provide Hines with counsel for his state

habeas proceeding, the ineffective assistance of that counsel, or

counsel’s failure to meet minimum due process standards, cannot

form the basis of federal habeas relief.     Hines’ request for a COA

on this claim is denied.

             V.   DISTRICT COURT FUNDING OF DNA TESTS

     In his final point of error Hines argues the district court

wrongly denied him funds to conduct a new DNA test on the blood

evidence to aid his federal habeas application as allowed under 21

U.S.C. § 848(q)(9).   That section states:

     Upon a finding that investigative, expert, or other
     services are reasonably necessary for the representation
     of the defendant, whether in connection with issues
     relating to guilt or the sentence, the court may
     authorize the defendant's attorneys to obtain such
     services on behalf of the defendant and, if so
     authorized, shall order the payment of fees and expenses
     ...

                                14
21 U.S.C. § 848(q)(9) (emphasis added).                  In denying Hines funds

under this section, the district court concluded that Hines had not

shown    that   the     requested      assistance      would     aid    him    in    the

development of a viable habeas claim.                  It rejected his argument

that testing would aid in developing the trial continuance claim

above, concluding that claim lacked merit.

      We review the district court’s determination to deny expert

funds under 21 U.S.C. § 848(q)(9) for an abuse of discretion.                        See

Clark,    202    F.3d       at    765-66     (noting    that     district      court’s

determination whether to take additional evidence is reviewed for

abuse of discretion).            Hines argues that the district court abused

its   discretion       in    denying   the    funds    because    a    DNA    test   was

reasonably necessary for him to prove that the DNA test results

were “subject to varying expert opinion,” as required by Yohey, 985

F.2d at 227.

      Assuming arguendo that Hines is correct that the tests were

reasonably necessary to establish that a second DNA test at trial

would have produced different results, we still cannot conclude

that the district court abused its discretion.                    We explained in

Fuller, 114 F.3d at 502 (5th Cir. 1997), that for a request for

funds to be “reasonably necessary” for a claim, a petitioner must

demonstrate how those results can show that any aspect of his trial

was constitutionally flawed.            Hines argues that the requested test

could show      that    he    was   constitutionally      entitled       to    a   trial


                                           15
continuance under Yohey.   But to make a valid Yohey claim, not only

does Hines have to show that additional DNA testing might have

produced different results, but also that the results would have

been critical evidence at trial.       As we noted above, Hines cannot

do so.      Accordingly, we affirm the district court’s denial of

Hines’ funding request.

                           VI.   CONCLUSION

     Because Hines has failed to show that reasonable jurists would

debate the conclusions of the district court, his requests for a

COA are DENIED.    In addition, because Hines has not shown that the

trial court abused its discretion in denying him funds for expert

testing, the district court’s denial of Hines’ funding request is

AFFIRMED.

DENIED; AFFIRMED.




                                  16
