     Case: 08-70041     Document: 00511113508          Page: 1    Date Filed: 05/17/2010




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

                                                  FILED
                                                                            May 17, 2010

                                       No. 08-70041                         Lyle W. Cayce
                                                                                 Clerk

RANDOLPH MANSOOR GREER,


                                                   Petitioner - Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,


                                                   Respondent - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:03-cv-02563


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Petitioner-Appellant Randolph Mansoor Greer was convicted and
sentenced to death in Texas for the 1991 murder of Walter Chmiel. The district




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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court denied Greer habeas relief on all claims and sua sponte declined to issue
a Certificate of Appealability (“COA”) on all claims.
      Before this court, Greer seeks COA as to four issues: (1) whether his due
process right to an impartial jury was denied when the trial court overruled his
voir dire challenge of juror M.J., who expressed a preference for imposing the
death penalty; (2) whether his due process right to an impartial jury was denied
when the trial court denied his motion for a new trial after juror J.N. testified
regarding inappropriate comments during jury deliberations; (3) whether his
right to effective assistance of counsel was denied when his trial attorneys failed
to obtain forensic expert assistance to aid in his defense; and (4) whether his
rights were violated by the trial court’s jury instruction, pursuant to the Texas
“12-10 Rule” governing capital sentencing, regarding the effect of a “no” vote by
a single juror when answering the special issues. We DENY a COA on all
claims.
                                        I.
      In 1991, at age 19, Greer was tried and convicted in Texas state court for
the murder of Walter Chmiel in the course of committing and attempting to
commit armed robbery. The Texas Court of Criminal Appeals summarized the
facts underlying the capital murder trial as follows:
      On the morning of June 27, 1991, William Unverzagt visited the
      Alamo Gun Shop in Bellaire, Texas, to speak with the owner, Walter
      Chmiel about servicing a pistol. Upon entering the store, Unerzagt
      was startled by [Greer], who walked up behind him, grabbed his
      shoulder, put a gun to his head, and forced him to the floor of the
      store. Moments later Unverzagt also noticed that the glass counter
      and display case were broken and that a gun case at the rear of the
      store was empty.

      [Greer] ordered Unverzagt to remove several semiautomatic pistols
      and place them in a knapsack and to collect money from the tray
      behind the counter. [Greer] proceeded to guide Unverzagt through
      the store, instructing him to break through the glass and retrieve

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      additional weapons. Thereafter, [Greer] ordered Unverzagt to lie
      face down on the floor while he acquired several boxes of
      ammunition. [Greer] returned to Unverzagt and told him to get on
      his knees and beg for his life, and he complied. [Greer] then ordered
      him to get up and help him to the car with the knapsack full of
      guns.

      After getting the bag into the car, [Greer] threatened Unverzagt and
      told him to run. Unverzagt ran and hid behind the corner of a
      building and was able to get the license number of [Greer’s] car.
      Unverzagt ran to an adjacent business and told the owner to call the
      police.

      Walter Chmiel was killed in the incident. Examination of the victim
      revealed that he had been shot once in the head, from a distance of
      less than 24 inches.

      [Greer] was subsequently spotted by police driving the car matching
      the description of that given by Unverzagt and bearing the same
      license number. Police attempted to stop the vehicle, but [Greer] fled
      and lost the police. Police found the vehicle moments later and
      noticed various guns scattered about the ground and a stash of guns
      at the foot of a nearby fence.


Greer v. State, No. 71,533 (Tex. Crim. App. Oct. 26, 1994) (unpublished), slip op.
at 1-2 (“Greer I”). In September 1991, Greer was indicted for the felony of capital
murder in Texas state court. He was tried before a jury and convicted on all
counts.   Pursuant to Texas’s capital sentencing scheme, after a sentencing
hearing, the jury answered “Yes” to the three special sentencing issues. The
trial court sentenced Greer to death. The Texas Court of Criminal Appeals
affirmed Greer’s conviction and sentence and denied rehearing. Greer I (Tex.
Crim. App. Oct. 26, 1994). The United States Supreme Court denied Greer’s
petition for writ of certiorari. Greer v. Texas, 515 U.S. 1133 (1995).
      In 1997, Greer petitioned for state habeas relief. In August 2002, the trial
court adopted the State’s proposed findings of fact and conclusions of law and



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recommended that relief be denied.          The Texas Court of Criminal Appeals
summarily denied relief based on the trial court’s findings of fact and conclusions
of law.    Ex parte Greer, No. 53,836-01 (Tex. Crim. App. Nov. 27, 2002)
(unpublished).
      Greer initiated federal habeas proceedings on July 11, 2003. Respondent-
appellee Director, Texas Department of Criminal Justice (“Respondent”),
answered and moved for summary judgment. In April 2004, the district court
entered an order staying proceedings in the case pending Greer’s successive
state petition for habeas relief to exhaust one of his claims.1 The Texas Court of
Criminal Appeals remanded Greer’s application to the state trial court for
consideration, and instructed the court to conduct a live evidentiary hearing. Ex
parte Greer, No. 53,836-02 (Tex. Crim. App. Sept. 14, 2005) (unpublished).
      On remand, the state trial court rejected Greer’s successive state petition
and adopted the State’s proposed findings of fact and conclusions of law. Ex parte
Greer, No. 602461-B (228th Dist. Ct., Harris Cty., Tex., Oct. 10, 2006). The
Texas Court of Criminal Appeals summarily adopted the state habeas court’s
findings and conclusions denying habeas relief. Ex parte Greer, No. 53,836-02
(Tex. Crim. App. Mar. 21, 2007) (unpublished).
      In October 2007, the district court lifted the stay and federal habeas
proceedings continued. Respondent filed a second answer and motion for
summary judgment.          On September 26, 2008, the district court granted
Respondent’s motion and denied Greer’s habeas petition on four grounds: (1) the
state court’s factual findings regarding Greer’s claims related to jurors M.J. and
J.N. were entitled to AEDPA deference; (2) Greer’s claims of ineffective
assistance of counsel were either unexhausted and therefore procedurally
barred, or were not supported with sufficient evidence; (3) Greer’s claims that

      1
         The unexhausted claim involved newly discovered evidence of improper handling and
possible destruction of DNA evidence at the Houston Police Department crime lab.

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the State destroyed biological evidence that might have excluded him from the
crime scene were factually incorrect 2 ; and (4) Greer’s claims regarding Texas’s
jury instructions for capital sentencing were foreclosed by this court’s decision
in Miller v. Johnson, 200 F.3d 274, 288-89 (5th Cir.), cert denied, 531 U.S. 829
(2000). Based on these rulings, the court sua sponte concluded that Greer is not
entitled to a COA on his claims.3 Greer timely filed this application for a COA.
                                              II.
       Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
“[b]efore an appeal may be entertained, a prisoner who was denied habeas relief
in the district court must first seek and obtain a COA . . . .” Miller-El v. Cockrell,
537 U.S. 322, 335 (2003); 28 U.S.C. § 2253(c)(1). A COA will issue only if Greer
makes “a substantial showing of the denial of a constitutional right.” Miller-El,
537 U.S. at 336 (citing § 2253(c)(2)).             To satisfy the standard, Greer must
demonstrate “that 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.” Id. (internal quotations and citations omitted); see also Tennard v.
Dretke, 542 U.S. 274, 288 (2004).
       “When the district court has rejected the constitutional claim on the
merits, the petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where the district court denies a
habeas petition on procedural grounds without reaching the underlying
constitutional claim, a COA should issue if the petitioner “shows, at least, that



       2
           Greer does not raise the destruction of evidence claim in this application for COA.
       3
         While Greer petitioned for federal habeas relief in the district court, he did not
request a COA.

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jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right, and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Id. at
478 (emphasis added).
      The “threshold [COA] inquiry does not require full consideration of the
factual or legal bases adduced in support of the claims,” nor does it require a
showing that the appeal will succeed. Miller-El, 537 U.S. at 336-37. Instead, we
“conduct an overview of the issues presented and a general assessment of their
merits.” Paredes v. Quarterman, 574 F.3d 281, 288 (5th Cir. 2009) (per curiam)
(citations omitted). Further, “any doubt as to whether a COA should issue in
a death-penalty case must be resolved in favor of the petitioner.” Pippin v.
Dretke, 434 F.3d 782, 787 (5th Cir. 2005).
      In making a COA inquiry, we must consider that AEDPA required the
district court to defer to the state court’s resolution of Greer’s claims, except in
limited circumstances. Foster v. Quarterman, 466 F.3d 359, 365 (5th Cir. 2006),
cert. denied, 127 S. Ct. 2099 (2007). Under AEDPA, federal courts may not grant
a writ of habeas corpus with respect to a claim adjudicated on the merits in state
court unless that adjudication
      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or (2)
      resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.


28 U.S.C. § 2254(d)(1)-(2); see Penry v. Johnson, 532 U.S. 782, 792 (2001). The
state court’s factual findings are presumed correct.           Id. § 2254(e)(1).
Accordingly, this court “must presume that the state court’s factual findings are
correct unless [Greer] meets his burden of rebutting that presumption by clear



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and convincing evidence.” Reed v. Quarterman, 555 F.3d 364, 368 (5th Cir. 2009)
(citing 28 U.S.C. § 2254 (e)(1)).
      In addition, “absent special circumstances, a federal habeas petitioner
must exhaust his state remedies by pressing his claims in state court before he
may seek federal habeas relief.” Orman v. Cain, 228 F.3d 616, 619-20 (5th Cir.
2000); see 28 U.S.C. § 2254(b)(1).
                                        III.
      Greer asserts that his Sixth and Fourteenth Amendment rights to an
impartial jury were violated when the trial court denied his for-cause challenge
of prospective juror M.J. based on M.J.’s comments indicating some bias in favor
of the death penalty.
      During voir dire, the prosecutor and defense counsel asked M.J. about his
views on punishment for murder generally and capital punishment specifically.
The prosecutor asked the following, in relevant part:


      Q:    [Prosecutor] So, the legislature has set out a range of
            punishment for that offense [i.e., murder] that is the widest
            there is in the law, from five years’ probation to 99 years or
            life, which is the widest range there is.
                   My question to you is: Can you keep your mind open to
            that full range of punishment for the offense of murder from
            as little as five years’ probation to as much as 99 years or life?

      A.    [M.J.] Yes.

            ....

      Q:    In your [juror] questionnaire you say I’m strongly in favor of
            capital punishment as a penalty?

      A:    Yes.




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       Q:     The next level says I would usually vote for the death penalty
              in a case where the law allows me to do so. . . . 4 Are you
              telling me that, you know, you will usually vote for the death
              penalty where the law allows me [sic] to do so? Are you telling
              me that you’re so inclined to assess the death penalty as a
              proper punishment, that any option you had to give the death
              penalty, you’d do that, or can you follow the law we’ve talked
              about and answer those questions according to the evidence?

       A:     No, sir. I would follow the law.
Defense counsel examined M.J. further:
       Q:     [Defense Counsel] You indicated [on your juror questionnaire
              that] life imprisonment is more effective than capital murder
              [sic]. You said you disagree with that?

       ....

       A:     Yes, sir.

       Q:     I’m asking why do you disagree with that?

       A:     I guess I think that capital punishment is the proper
              punishment for capital murder.

       Q:     I take it, not just the proper punishment but in your mind a
              just punishment.

       A:     Yes.

       Q:     Someone forms the specific intent to commit murder and just
              takes another person’s life, then your feelings would be they
              should forfeit their own life?

       A:     Yes, sir.




       4
         On the juror questionnaire, prospective jurors answered questions regarding their
views on capital punishment by selecting the statement that most closely matched their views.
M.J. chose the statement in his testimony over this statement, “My decision on whether to
assess the death penalty would depend upon the facts and circumstances of the case.”

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   ....

   Q:     Let me ask you this, knowing how strong your feelings are
          about the death penalty.        If you believe somebody
          intentionally committed murder, formed the specific intent to
          commit murder, do you feel like it would take very much to
          convince you they acted deliberately?

   ....


   A:     I don’t think my personal view of the death penalty and how
          I think, you know, cases that it should be involved in, I mean,
          I’m not a lawyer, and I don’t see cases every day, right. But I
          don’t think my personal opinion of the death penalty is going
          to automatically cause me to say, well, if it’s intentional, it’s
          deliberate. I think I would give fair weight in trying to
          determine the difference.

   Q:     Okay. Well, let’s not talk about automatically. Okay. Would
          it affect the way you weigh the evidence?

   A:     No.

   Q:     You’re the same person that’s indicated some very strong
          views about the death penalty. Okay. You’re the person who
          said, I would vote for the death penalty, usually vote for the
          death penalty in a case where the law allows me to do so. If
          you find somebody guilty in a capital case, I’m telling you
          right now the law’s going to allow you to do so, to vote for the
          death penalty. And you’ve indicated here under oath that that
          [sic] is your preference?

   A:     I would usually. That’s what I said there, right.

   Q:     That you would usually vote for it in a case where the law
          allows me [sic] to do so?

   A:     Yes, sir.




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      Q:     And what I’m saying is in a capital case if you find somebody
             guilty, the law’s going to allow you to do so. So, what this tells
             me is you would usually have a preference to vote for the
             death penalty?

      A:     The law will allow me to do so if I answer these three [special
             issues] questions with yes.

      Q:     Exactly.

      A:     Is that correct?

      Q:     Exactly.

      A:     So, the law doesn’t allow me to do that if I answer any of these
             with no.

      ....

      Q:     My last question to you is this: Would you still usually vote
             for the death penalty in a case where the law allows you to do
             so?

      A:     Where the law allows me to do so?

      Q:     Uh-huh.

      A:     Yes, sir.
Defense counsel challenged M.J. for cause on the basis that M.J.’s testimony
indicated he would usually vote for the death penalty in a case where the law
allows him to do so, and therefore was biased against Greer. The trial court
denied the challenge, stating that M.J. adequately explained that if the evidence
in the case authorized him to answer the special issues questions “yes”, and he
felt he should answer them “yes,” then the law would allow him to do so.
Defense counsel then requested an additional peremptory strike. The trial court
denied this request.



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      The Texas Court of Criminal Appeals held that, viewing the testimony as
a whole, M.J. clearly expressed his ability and intentions of considering the full
range of punishment and his views did not amount to bias or prejudice. It also
deferred to the trial court’s observations of M.J.’s demeanor during voir dire.
      The district court ruled that the Texas Court of Criminal Appeals
reasonably concluded that M.J.’s opinion on the death penalty would not prevent
or substantially impair the performance of his duties as a juror. Citing Adams
v. Texas, 448 U.S. 38, 45 (1980), the district court noted that the Texas Court of
Criminal Appeals’ conclusion was based on M.J.’s statements and the trial
court’s ability to observe M.J.’s demeanor.        The district court concluded,
therefore, that the ruling was entitled to AEDPA deference. Accordingly, the
district court denied habeas relief on this claim.
      The Sixth and Fourteenth Amendments guarantee an impartial jury, and
the presence of a biased juror may require a new trial as a remedy. U.S. C ONST.
AMENDS. VI, XIV;   Ross v. Oklahoma, 487 U.S. 81, 85 (1988); Thacker v. Dretke,
396 F.3d 607, 613-14 (5th Cir. 2005). A prospective juror’s views about capital
punishment are not a basis for removal for cause, however, unless those views
would “prevent or substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S.
412, 424 (1985) (citation and quotation marks omitted). The question of whether
a particular juror is biased, whether in regards to capital punishment or any
other issue, is one of historical fact. Id. at 428-29; see also King v. Lynaugh, 850
F.2d 1055, 1058 (5th Cir. 1988) (en banc). “[S]uch a finding is based upon
determinations of demeanor and credibility that are particularly within the trial
judge’s province.” Witt, 469 U.S. at 428; see also Gomez v. Quarterman, 529
F.3d 322, 331 (5th Cir. 2008).
      Specifically in the context of the Texas capital sentencing system, the juror
“must be willing not only to accept that in certain circumstances death is an

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acceptable penalty but also to answer the statutory questions without conscious
distortion or bias,” notwithstanding his views on capital punishment. Adams,
448 U.S. at 46. Viewed through the AEDPA lens, as an issue of historical fact,
Greer must rebut the presumption of correctness given to the state court factual
findings by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
      Reasonable jurists would not find the district court’s assessment debatable
or wrong. As the district court noted, the Texas Court of Criminal Appeals
correctly relied on Witt’s juror bias standard. Moreover, the Texas Court of
Criminal Appeals deferred to the trial court’s assessment of M.J.’s testimony.
As the district court noted, the demeanor evidence available to the trial court,
in combination with the relatively weak evidence of bias about the death
penalty, demonstrates that the trial court was reasonable to conclude that M.J.
could continue to serve as a juror. See Gomez, 529 F.3d at 332 (citing the
deference afforded to trial courts under Witt and denying COA on a claim of
failure to exclude a venireman). Greer fails to present clear and convincing
evidence to rebut the state court’s factual determination regarding M.J.’s
credibility. See § 2254(e)(1). Accordingly, we deny a COA as to this issue.
                                      IV.
      Greer asserts that his due process right to an impartial jury was also
violated when the trial court denied his motion for a new trial based on improper
comments from juror J.N. regarding Greer’s failure to testify and the amount of
evidence presented during the penalty phase.
      After Greer was convicted in the guilt-innocence phase of the trial, the
State and defense presented extensive testimony in the penalty phase.
Following the imposition of the death penalty, defense counsel learned that
potentially improper statements were made by jury members. Greer moved for
a new trial on the grounds that juror J.N. made improper comments during the



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presentation of the State’s evidence, before Greer’s mitigation presentation, and
during the jury’s sentencing deliberations.
      At the hearing on the motion, all twelve jurors testified regarding two
types of statements. First, several jurors testified that J.N. commented during
the jury’s sentencing deliberations regarding Greer’s failure to testify. J.N.
testified that statements were made to the effect that the defense attorneys
should have put Greer on the stand, but that he could not recall having made
such statements. He (and the other jurors) testified that when the statements
were made, other jurors stated that they should not discuss Greer’s failure to
testify and that they should consider only the facts of the case presented during
the trial.
      Second, J.N. admitted to other comments regarding the lengthy
evidentiary presentations at the penalty phase of trial:
             Q:    [Defense Counsel] Before the State of Texas had
                   finished presenting its evidence during the
                   punishment stage of the trial, did you ever make
                   a statement concerning the fact that a note
                   should be sent to the trial judge?

             A.    [J.N.] Yes, sir.

             Q:    What was this statement?

             A.    I said that – and I was about like half serious,
                   half jokingly because they had been telling us we
                   couldn’t request anything without a note to the
                   judge. And I said that I’ve heard a lot of
                   repetitious testimony about the same thing from
                   different witnesses, all of them saying the same
                   thing and that I was – the trial was getting
                   lengthy. And I had a lot of work to do at work,
                   and I said I’ve heard a lot of repetitious testimony
                   and I think I ought to send a note to the judge
                   saying we’ve heard enough of the repetitious
                   testimony.

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                   ....

            Q:     [J.N.], why did you make that statement before
                   you’d heard any evidence or testimony about the
                   defendant during the punishment stage that you
                   had heard enough?

            A.     I had heard enough repetitious testimony from
                   the State. I never said anything about the
                   defense.


Nine other jurors also testified that J.N. made similar comments. On cross
examination, however, J.N. testified that regardless of any comments made, he
waited to hear all the evidence in the case and waited to be charged on the law
before considering the verdict in the case. The other jurors similarly stated that
the comments did not impact their deliberations. Based on this testimony, the
trial court denied Greer’s motion for a new trial.
      The Texas Court of Criminal Appeals concluded that J.N.’s statements had
no effect on the jury’s decision to recommend the death penalty because each
juror testified that his or her decision was based solely upon the evidence and
the law. The Texas Court of Criminal Appeals also concluded that the evidence
presented at the hearing on the motion for new trial failed to demonstrate any
juror misconduct. Accordingly, it held that the trial court did not abuse its
discretion in overruling Greer’s motion.
      The district court concluded that it probably could not grant Greer relief
on this ground because the claim involved complaints about the jury’s
deliberative process, citing Tanner v. United States, 483 U.S. 107 (1987). The
court further concluded that even if habeas relief was available on this ground,
it found reasonable the Texas Court of Criminal Appeals’ conclusion that J.N.’s
statements had no impact on the jury based on the facts and controlling law, as



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it was consistent with the testimony of the jurors at the hearing and the trial
judge’s credibility determinations.
      Courts generally will not inquire into the jury’s deliberative process absent
a showing of external influence on the jurors. Tanner v. United States, 483 U.S.
107, 120-21 (1987) (“[F]ull and frank discussion in the jury room, jurors’
willingness to return an unpopular verdict, and the community’s trust in a
system that relies on the decisions of lay people would all be undermined by a
barrage of postverdict scrutiny of juror conduct.” (citation omitted)). It is well-
settled that jurors’ testimony regarding statements made during the deliberative
process cannot be used to overturn a verdict. See id. at 117-21.
      Deliberation prior to the close of evidence, however, threatens a
defendant’s Sixth Amendment right to trial by an impartial jury. United States
v. York, No. 09-40309, 2010 WL 780166, at *6 (5th Cir. Mar. 9, 2010). In
evaluating a claim of juror misconduct, the law presumes that the jury is
impartial and the burden rests on the defendant to show otherwise. Id. In
addition, trial judges have broad discretion to deal with possible jury
misconduct. Id.; see also United States v. Sotelo, 97 F.3d 782, 794 (5th Cir. 1996)
(noting that “the trial court can better judge the mood and predilections of the
jury”). The trial judge’s discretion is broadest when the allegation involves
internal misconduct such as premature deliberations, instead of external
misconduct such as exposure to media publicity. York, 2010 WL 780166 at *6.
      In this case, reasonable jurists would not find debatable or wrong the
district court’s assessment of Greer’s claim related to J.N.’s “failure to testify”
comments, because the remarks were said during jury deliberations.                See
Tanner, 483 U.S. at 117-21. Further, as the district court noted, the trial court
was able to observe all the jurors’ testimony during the hearing for the motion
for new trial, including J.N.’s, that they did not consider Greer’s failure to testify
during deliberations. Sotelo, 97 F.3d at 794.

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      The district court’s assessment of Greer’s claim with respect to J.N.’s “too
much evidence” comment, while a closer call, is also not debatable. Greer argues
that the record reflects a significant risk that J.N. refused to consider mitigating
evidence before imposing a death sentence, citing Morgan v. Illinois, 504 U.S.
719, 736 (1992). In Morgan, the Supreme Court held that jurors who state that
they will automatically vote for the death penalty without regard to mitigating
evidence should be disqualified for cause because they have formed an opinion
concerning the merits of the case without basis in the evidence presented at
trial. 504 U.S. at 738-39.    In this case, the record does not reflect that J.N.
refused to consider mitigation evidence. Instead, J.N. stated that he heard “a lot
of repetitious testimony” in the penalty phase after the State presented some
(but not all) evidence of Greer’s prior crimes, before the defense presented
mitigation evidence, and before the trial court instructed the jury.
      Moreover, J.N. testified at the hearing on the motion for a new trial that
he waited to hear all the evidence before deciding a sentence. While this latter
statement appears self-serving, the eleven other jurors testified that they also
waited to hear all evidence, and averred that J.N.’s statements did not affect
their deliberations.   As the Texas Court of Criminal Appeals held and the
district court noted, the lack of impact on the jury undermines Greer’s claims
about J.N.’s comments. See Sotelo, 97 F.3d at 797 (noting the “ultimate inquiry”
in a juror misconduct claim is: “Did the intrusion affect the jury’s deliberations
and thereby its verdict?”) (internal citations omitted).        The district court
correctly deferred to the Texas Court of Criminal Appeals’ conclusion.
Accordingly, we deny a COA as to this claim.
                                        V.
      Greer also argues that his Sixth and Fourteenth Amendment rights to
effective assistance of counsel and due process were violated when his trial



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                                    No. 08-70041

counsel failed to obtain forensic experts to rebut the State’s forensic evidence
presented during trial.
      During the trial, the State presented several varieties of forensic evidence
implicating Greer in Chmiel’s murder. First, the State presented 51 fingerprints
lifted from the Alamo Gun Shop, none of which were matched to Greer’s
fingerprints. One of Greer’s fingerprints were found on an ammunition pack,
but none were found on the guns that were located in the getaway vehicle.
Second, the State introduced evidence that blood splatters were found on the
wall directly behind Chmiel. Yet the State’s theory was that Chmiel was shot
in the top of the head as he leaned over the store’s counter, which would not
necessarily have lead to blood spatters behind him. Third, Unverzagt testified
that when he and the assailant left the gun shop, he saw blood on the assailant’s
hand, and that blood eventually got on Unverzagt’s shirt. The state’s DNA
testing on this was inconclusive at the time of the trial.5          Fourth, ballistic
evidence demonstrated that shell casings recovered from the crime scene
matched those found at two locations in North Carolina where, according to
witness testimony, Greer discharged a pistol. Fifth, Unverzagt testified that he
saw the assailant’s face three times, twice only from the corner of his eye.
      In Greer’s first state habeas application, he argued that his trial counsel
was ineffective for failing to request funding to obtain defense experts to counter
the state’s evidence. Within his ineffective assistance claim, he also incorporated
his separate claim that his due process rights were violated when he was denied
expert assistance at trial. The state habeas court found that, as a matter of law,
Greer failed to show deficient performance or prejudice based on trial counsel’s
reasonable decisions and beliefs.



      5
        Subsequent testing on the blood on Unverzagt’s shirt during Greer’s second state
habeas petition revealed that the blood was Greer’s.

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                                    No. 08-70041

      In his federal habeas petition, Greer reasserted his ineffective assistance
claims, and added a claim that he needed expert assistance because
contamination at the Houston Police Department (“HPD”) crime laboratory may
have undermined the DNA evidence. Respondent asserted failure to exhaust in
its motion for summary judgment, and the district court stayed proceedings to
permit Greer to file a successive state habeas application.
      In his successive state petition, Greer specifically asserted that his due
process right was violated when the State mishandled and possibly destroyed
DNA evidence that could have ruled him out as present at the crime scene.
However, he did not reassert this claim in the context of an ineffective assistance
claim. The Texas Court of Criminal Appeals remanded to the state trial court
for evidentiary hearings.     The trial court did not hold an evidentiary hearing;
instead, it received inventory affidavits and ordered DNA testing of evidence
preserved from the crime scene and fresh samples from Greer. The test results
conclusively demonstrated that the blood was Greer’s. Based on these test
results, the trial court entered findings of fact and conclusions of law
determining that a live hearing was not necessary and recommending that relief
be denied. The Texas Court of Criminal Appeals adopted the recommendation.
          The federal district court ruled that the portion of Greer’s ineffective
assistance claims regarding the problems with the HPD crime lab was
procedurally defaulted because Greer failed to present them in his successive
state habeas petition.6 Moreover, the district court held that claims regarding
ineffective assistance for failure to obtain expert testimony lacked evidentiary
support.
      Criminal defendants are entitled to the effective assistance of counsel
under the Sixth Amendment.            Under the Strickland test for ineffective


      6
         Greer abandons on appeal the claims that he was denied due process because the
crime lab destroyed potentially exculpatory evidence.

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                                 No. 08-70041

assistance of counsel, Greer must show (1) that his counsel’s performance was
deficient, and (2) that the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 689-94 (1984). Under the first prong,
“[t]o establish deficient performance, a petitioner must demonstrate that
counsel’s representation fell below an objective standard of reasonableness.”
Wiggins v. Smith, 539 U.S. 510, 521 (2003). Counsel “is strongly presumed to
have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690.
With respect to the second prong, “to establish prejudice a defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Wiggins, 539
U.S. at 534; Green v. Johnson, 160 F.3d 1029, 1035-36 (5th Cir. 2000). “A
reasonable probability is probability sufficient to undermine confidence in the
outcome.” Wiggins, 539 U.S. at 534. In the habeas context, the state court’s
determination of whether counsel rendered effective assistance is a mixed
question of law and fact. Strickland, 466 U.S. at 698.
      The Supreme Court has stated the importance of providing indigent
defendants with experts to present their claims fairly within the adversary
system. Ake v. Oklahoma, 470 U.S. 68, 77 (1985). Non-psychiatric experts,
however, are required only if the evidence is both critical to the conviction and
subject to varying expert opinion. Yohey v. Collins, 985 F.2d 222, 227 (5th Cir.
1993).
                                      A.
      Respondent asserted, and the district court held, that Greer failed to
exhaust the portion of his claim regarding the issues at the HPD crime lab, and
therefore it is procedurally defaulted. Because the district court denied this
claim on procedural grounds, under the AEDPA COA inquiry, we determine
whether “[1] jurists of reason would find it debatable whether [Greer’s] petition

                                       19
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                                  No. 08-70041

states a valid claim of the denial of a constitutional right, and [2] jurists of
reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 478; see also Moore v. Quarterman, 534
F.3d 454, 459-60 (5th Cir. 2008).       We review de novo whether a habeas
petitioners’s claims have been procedurally defaulted. Coleman v. Dretke, 395
F.3d 216, 220 (5th Cir. 2004).
      Our review of the record reveals that jurists of reason would not find it
debatable whether the district court was correct in its procedural ruling.
“Procedural default . . . occurs when a prisoner fails to exhaust available state
remedies and the court to which petitioner would be required to present his
claims in order to meet the exhaustion requirement would now find the claims
procedurally barred.” Williams v. Thaler, --- F.3d ---, 2010 WL 1039450, at *11
(5th Cir. Mar. 23, 2010). Greer has already filed two petitions in Texas state
court for post-conviction relief. His successive state habeas petition raised a due
process claim that the State mishandled and/or destroyed DNA evidence that
could rebut the claim that his blood was found at the murder scene. Greer did
not assert, however, an ineffective assistance of counsel claim for failure to
obtain an expert based on the HPD’s mishandling of DNA evidence and testing.
Under Texas law, the omission is fatal to this portion of Greer’s ineffective
assistance claim. Texas courts may not consider the merits of any subsequent
application for post-conviction relief challenging the same conviction unless the
application meets one of three statutory exceptions. Id. (citing T EX. C ODE. C RIM.




                                        20
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                                           No. 08-70041

P RO. art. 11.071 § 5(a)).7 Greer offered no arguments to the district court that
his application falls within the exceptions, and he offers none here.
       Moreover, Greer offers no arguments that would excuse the procedural
default. “Federal habeas review of procedurally defaulted claims is barred
‘unless the prisoner can demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of justice.’” Id.
(citing Hughes v. Quarterman, 530 F.3d 336, 341 (5th Cir. 2008) (quoting
Coleman v. Thompson, 501 U.S. 722, 750 (1991))). Again, Greer offered no
arguments to the district court to meet this standard, and does not offer any in
his application for COA.
       Because the district court’s procedural ruling is not debatable among
reasonable jurists, we do not reach the merits of Greer’s claim.                     Turner v.
Quarterman, 481 F.3d 292, 301 (5th Cir. 2007). Accordingly, we deny a COA as
to this portion of the claim.8


       7
           The statutory exceptions are:

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

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

       (3) by clear and convincing evidence, but for a violation of the United States
       Constitution no rational juror would have answered in the state's favor one or
       more of the special issues that were submitted to the jury in the applicant's trial
       under [the Texas capital sentencing scheme].

TEX . CODE . CRIM . PRO . art. 11.071 § 5(a))
       8
         We note, however, that this portion of Greer’s ineffective assistance claim would fail
on the merits for the same reasons as the rest of his ineffective assistance claims, as explained
in Section V.B.

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                                  No. 08-70041

                                        B.
      The district court also held that Greer’s remaining ineffective assistance
of counsel claims were speculative, because he did not offer experts who would
have testified nor specifics regarding their testimony or its helpfulness.
      The state habeas court’s fact findings on these claims, based primarily on
the affidavits of Greer’s trial counsel, were: (1) trial counsel believed there was
nothing objectionable in the ballistics evidence; (2) there was substantial
evidence, other than ballistics and DNA evidence, to tie Greer to the scene of the
crime; (3) trial counsel believed they would have lost credibility with the jury if
they attempted to cast doubt on the DNA evidence; (4) trial counsel thought that
use of an expert witness concerning witness reliability would have intruded on
a jury’s job; and (5) trial counsel did not believe the trial judge would have
allowed an expert witness on witness reliability because it is the defense
attorney’s job to undermine the State’s evidence.          The state habeas court
concluded, as a matter of law, that the totality of the representation was “well
within an objective standard of reasonableness” and therefore effective.
Moreover, the state habeas court held Greer failed to show prejudice, based on
counsel’s reasonable strategic decision not to present an expert witness
concerning witness reliability, counsel’s reasonable decision regarding the
reliability of the DNA evidence, counsel’s reasonable decision not to lose
credibility with the jury, and counsel’s reasonable belief that the ballistics
evidence was not objectionable.
      Essentially, Greer asserts that his counsel was ineffective for failing to
investigate the forensic evidence or to obtain experts to testify at trial. A habeas
applicant “who alleges a failure to investigate on the part of his counsel must
allege with specificity what the investigation would have revealed and how it
would have altered the outcome of the trial.” United States v. Green, 882 F.2d
999, 1003 (5th Cir. 1989). When the petitioner questions counsel’s failure to call

                                        22
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                                       No. 08-70041

a witness, counsel’s decision is considered to be essentially strategic, and
“speculations as to what [uncalled] witnesses would have testified is too
uncertain.” Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)
       While Greer is not required to prove the validity of his claims in his COA
petition, Miller-El, 537 U.S. at 336-37, he failed to provide more than conclusory
allegations to the district court. Without “the distorting effects of hindsight,”
Strickland, 466 U.S. at 689, the state court found that trial counsel’s strategic
decision not to challenge the DNA evidence or to provide expert testimony on the
remaining forensics evidence was not deficient.             Similarly, “consider[ing] the
totality of the evidence before the jury,” Strickland, 466 U.S. at 695, the state
court concluded that the outcome of Greer’s trial was not undermined by trial
counsel’s decision. Greer’s federal habeas petition offered no evidence to counter
these findings.      Accordingly, we do not believe the remainder of Greer’s
ineffective assistance of counsel claims are “adequate to deserve encouragement
to proceed further,” Miller-El, 537 U.S. at 336, and we deny COA.9
                                             VI.
       Finally, Greer asserts that his Eighth and Fourteenth Amendment rights
were violated because the jury instructions issued at the penalty phase of his


       9
          We note that the district court’s analysis amounted to a de novo review as to whether
Greer identified potential witnesses or helpful evidence. The district court should have
analyzed, under AEDPA, whether the state court’s “adjudication of the claims [on the merits]
(1) resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Supreme Court precedent; or (2) resulted in a decision based on an
unreasonable determination of the facts in light of the evidence presented at trial.” 28 U.S.C.
§ 2254(d). In our COA inquiry, however, we ask whether the district court’s resolution was
debatable among jurists of reason. Miller-El, 537 U.S. at 336. In this case, the resolution of
the claim is not debatable. See Basso v. Thaler, No. 09-70012, 2010 WL 28524, at *4 (5th Cir.
Jan. 5, 2010) (unpublished) (denying COA where petitioner alleged ineffective assistance for
failure to present evidence; counsel’s decision was “fully informed and strategic in the sense
that it is designed to avoid harm to the defense”); cf. Buntion v. Quarterman, 524 F.3d 664,
671-72 (5th Cir. 2008) (holding that the district court erred when it based its AEDPA analysis
on authorities other than clearly established Supreme Court precedent; we then analyzed the
claim under the appropriate AEDPA standard).

                                              23
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                                        No. 08-70041

trial misled the jury regarding the effect of a “no” vote” by a single juror when
answering the special issues questions under Texas’s capital sentencing scheme.
       At the time of Greer’s trial, Texas’s capital sentencing statute required the
court to submit three special issues to the jury. See T EX. C ODE C RIM. P. art.
37.071(b) (Vernon 1992).10 If the jury answers “yes” to each of issues submitted,
the defendant will be sentenced to death, but if the jury answers “no” to one or
more issues, or is unable to answer any issue submitted, the defendant is then
sentenced to life imprisonment without parole. Id. art. 37.071(e). Under the “12-
10 Rule,” the court was also required to charge the jurors that: (1) they may not
answer any issue “yes” unless they agreed unanimously; and (2) they may not
answer any issue “no” unless 10 or more jurors agree.                    Id. art. 37.071(d).
Moreover, the court and attorneys for the State and Greer were prohibited from
informing the jury of the effect of the jury’s failure to agree on a special issue.
Id. art. 37.071(g).

       10
            The punishment special issues were:

                (1) whether the conduct of the defendant that caused the death
                of the deceased was committed deliberately and with the
                reasonable expectation that the death of the deceased or another
                would result;

                (2) whether there is a probability that the defendant would
                commit criminal acts of violence that would constitute a
                continuing threat to society; and

                (3) if raised by the evidence, whether the conduct of the
                defendant in killing the deceased was unreasonable in response
                to the provocation, if any, by the deceased.

TEX . CODE CRIM . P. art. 37.071(b) (Vernon 1992). The State was required to prove each issue
beyond a reasonable doubt, and the jury had to return a special verdict of “yes” or “no” on each
issue submitted. Id. art. 37.071(c).
       The statute was amended effective September 1, 1991, but provided that the previous
version applied to acts committed before the effective date. See H.R. 9, 72nd Leg., Reg. Sess.
(Tex. 1991); S. 880, 72nd Leg., Reg. Sess. (Tex. 1991). In this case, Chmiel’s murder was
committed on June 27, 1991.


                                              24
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                                  No. 08-70041

      In this appeal, Greer specifically takes issue with the following provisions
of the jury charge given at the close of evidence in the penalty phase:
             Each Special Issue submitted must be proved by the State
      beyond a reasonable doubt; therefore, before any issue may be
      answered “yes,” all jurors must be convinced by the evidence beyond
      a reasonable doubt that the answer to such issue should be “Yes.”
      If the jury unanimously determines (and only if such determination
      is unanimous) that the State has proved an issue beyond a
      reasonable doubt, then the Foreman will so record the Jury’s answer
      to such issue by signing the finding reflecting such answer on the
      form provided for that purpose.

            You are further instructed that if any juror, after considering
      the evidence and these instructions, has a reasonable doubt as to
      whether the answer to a Special Issue should be answered “Yes,”
      then such juror should vote “No” to that Special Issue in the jury’s
      deliberations.

            If ten (10) jurors or more vote “No” as to any Special Issue,
      and only if (10) jurors or more vote “No,” then the answer of the jury
      shall be “No” to that issue.

      ....


            You are instructed that when you deliberate on the questions
      posed in the special issues, you are to consider all relevant
      mitigating circumstances, if any, supported by the evidence . . . . If
      you find that there are any mitigating circumstances in this case,
      you must decide how much weight they deserve, if any, and
      thereafter, give effect and consideration to them in assessing the
      defendant’s personal culpability at the time you answer the special
      issues. If you determine, when giving effect to the mitigating
      evidence, if any, that a life sentence, as reflected by a negative
      finding to the issue under consideration, rather than a death
      sentence, is an appropriate response to the personal culpability of
      the defendant, a negative finding should be given to that special
      issue under consideration.
      Greer also contests the validity of the verdict form provided for each
special issue, which listed the issue and the following questions:


                                       25
  Case: 08-70041    Document: 00511113508       Page: 26   Date Filed: 05/17/2010

                                  No. 08-70041


      ANSWER

      We, the jury, unanimously find and determine beyond a reasonable
      doubt that the answer to this Special Issue is “Yes.”

      OR

      We, the jury, because at least ten (10) jurors have a reasonable
      doubt as to the matter inquired about in this Special Issue, find and
      determine that the answer to this Special Issue is “No.”


      About fifteen minutes after the jury began its deliberations in the
punishment phase, the jury sent a note to the judge stating, “[A]re we to keep
deliberating until we have either: unanimous Yes or 10 or more No’s to each
question?” Though the transcript suggests that the trial judge received the note,
there is no indication in the record of whether or how the trial judge responded.
Several hours later, the jury returned a verdict in which they answered “yes” to
each of the three special issues. Defense counsel requested a jury poll, and each
juror answered “yes” to the verdict.
      The state habeas court made the following findings of fact: (1) at the time
of Greer’s trial, Article 37.071 prohibited officers of the court from informing the
jury about the effect of deadlock and provided that the jury must be instructed
that they could not answer any of the special issues in the negative unless at
least ten of them were in agreement; (2) Greer failed to object to the jury charge
on the basis of the “12-10 Rule” or based on the prohibition from informing the
jurors as to the effects of a deadlock; and (3) although the jury sent notes to the
judge regarding the number of votes required to reach a verdict, there was no
evidence of a holdout juror or of any other disagreement between the jurors. As
a matter of law, the state habeas court held that, because the jury notes did not
indicate a holdout juror, Greer failed to show that the statutory prohibition



                                        26
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                                  No. 08-70041

against informing jurors of the effect of a single holdout egregiously harmed him
or violated his constitutional rights.
      The district court denied habeas relief on this claim without reference to
or analysis of the state habeas court’s decision. Instead, the district court held
that Greer was not entitled to relief on these claims because he incorrectly relied
upon Mills v. Maryland, 486 U.S. 367 (1988). In Mills, the Supreme Court held
that capital sentencing schemes requiring the jury to unanimously find the
existence of any mitigating factor before giving that factor any weight violated
the Eighth Amendment. Rather, the Supreme Court held, each juror in a capital
sentencing scheme must be free to give any mitigating evidence any weight that
juror deems appropriate in weighing mitigating against aggravating evidence.
486 U.S. at 377-81. In this case, as the district court noted, the trial court
specifically instructed the jury that any juror’s reasonable doubt as to whether
the answer to a special issue should be “yes” required a “no” vote. The district
court also reasoned that this court has held that Mills is not applicable to the
Texas capital sentencing scheme, citing Miller v. Johnson, 200 F.3d 274 (5th Cir.
2000).
      We hold that reasonable jurists would not find that the district court’s
assessment of Greer’s claim on this issue is debatable. At the outset, we note
that the district court cites to Miller, where we rejected petitioner’s argument
that Article 37.071(g)’s prohibition against informing the jury about the effect
of a deadlock was unconstitutional. 200 F.3d at 288-89. Greer, however, does
not make the same argument.              Indeed, in his appellate brief, Greer
acknowledges that the Supreme Court has rejected the argument that the
Eighth Amendment is violated when the trial court fails to provide an
instruction as to the consequence of jury disagreement. See Jones v. United
States, 527 U.S. 373, 380-83 (1999) (addressing challenge to jury instructions
under the Federal Death Penalty Act).          Instead, Greer argues that the

                                         27
  Case: 08-70041      Document: 00511113508         Page: 28     Date Filed: 05/17/2010

                                      No. 08-70041

instruction at his trial is unconstitutionally prohibitive because it creates the
risk that a juror would be misled into believing that, although she desires to vote
“no” on a special issue, she must acquiesce as a matter of law and vote “yes” if
nine other jurors do not agree with her.
       Nonetheless, the district court’s analysis correctly rejects Greer’s claim.
As the district court noted, we have previously rejected habeas claims of the 12-
10 Rule’s unconstitutionality. See, e.g., Hughes v. Dretke, 412 F.3d 582, 593-94
(5th Cir. 2005). The petitioner in Hughes, like Greer, specifically challenged the
12-10 Rule’s potential to confuse jurors who are inclined to vote “no” to the
special issues. Id. at 594. As here, the district court in Hughes recognized that
petitioner’s claim advocated an extension of Mills, and rejected such an
extension based on the non-retroactivity rule of Teague v. Lane, 489 U.S. 288
(1989). Id.11
       Even if the claim were not Teague-barred, we would reject the substantive
argument that the 10-12 Rule violates the rule of Mills. Jacobs v. Scott, 31 F.3d
1319, 1328-29 (5th Cir. 1994). Distinguishing the Texas 12-10 Rule from the
sentencing system the Supreme Court rejected in Mills, we noted that, “[u]nder
the Texas system, all jurors can take into account any mitigating circumstance.
One juror cannot preclude the entire jury from considering a mitigating
circumstance.” Id. at 1329 (emphasis added). Therefore, no COA will issue on
this claim.




       11
          Under Teague, new rules of constitutional criminal procedure will not be announced
on federal habeas review unless an exception applies. “[A] case announces a new rule when
it breaks new ground or imposes a new obligation on the States or the Federal Government.
. . . To put it differently, a case announces a new rule if the result was not dictated by
precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at
301.

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                                 No. 08-70041

                                     VII.
      After a review of the record, we conclude that Greer has not made a
substantial showing of the denial of a constitutional right regarding any of his
claims. Accordingly, we DENY his request for a COA as to all claims.
      COA DENIED; APPLICATION DISMISSED.




                                      29
