                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                            January 31, 2006

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                               No. 04-70051


                         WILLIAM E. WYATT, JR.,

                                                      Petitioner-Appellant,

                                  versus

  DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
               CORRECTIONAL INSTITUTIONS DIVISION,

                                                      Respondent-Appellee.


           Appeal from the United States District Court
                 for the Eastern District of Texas
                         (1:01-CV-00212-TH)


Before JONES, Chief Judge, and BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     William E. Wyatt was convicted in Texas state court of capital

murder of a child under the age of six and sentenced to death.

After denying habeas relief on all claims, the district court

granted Wyatt a certificate of appealability (COA) for two issues:

(1) whether the State‘s failure to produce a notebook prepared by

the victim’s mother (after her child’s death) violated due process,

pursuant   to   Brady   v.   Maryland,   373   U.S.    83   (1963)   (holding

prosecution’s suppression of favorable material evidence violates



     *
       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this opinion should not be published and is not precedent except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.
due process) (Brady-claim); and (2) whether Ring v. Arizona, 536

U.S. 584 (2002) (holding Sixth Amendment right to jury trial

violated   when    trial   judge   determines   presence   of   aggravating

circumstances for imposition of death penalty), is inconsistent

with the prejudice prong for ineffective assistance of counsel

(IAC) under Neal v. Puckett, 286 F.3d 230 (5th Cir. 2002) (en banc)

(holding   that,    to   establish   IAC,   defendant   must    satisfy   two

elements stated in Strickland v. Washington, 466 U.S. 668 (1984):

(1) counsel’s performance was deficient; and (2) that deficiency

caused prejudice), cert. denied, 537 U.S. 1104 (2003).             Wyatt v.

Dretke, No. 1:01-cv-00212 (E.D. Tex. 2004) (USDC Opn.).

     In addition, relying on Bush v. Gore, 531 U.S. 98 (2000)

(holding Equal Protection Clause requires uniform and specific

standards for vote counting), Wyatt requests a COA from this court

on a third issue: whether the Texas death penalty statute violates

equal protection because it provides no uniform standards for when

prosecutors should seek that penalty.

     For this third issue, a COA is DENIED.        For the two issues for

which the district court granted a COA, the denial of habeas relief

is AFFIRMED.

                                     I.

     On 4 February 1997, Damien Willis (the child), the three-year-

old son of Wyatt’s then-girlfriend, Renee Porter, with whom Wyatt

lived, was left in Wyatt’s care while Porter was at work.                  At

                                      2
approximately 6:00 p.m., Wyatt called 911, reporting the child had

accidentally drowned in the bathtub.             When emergency personnel

arrived, the child had no pulse, was not breathing, and was cold to

the touch.    Paramedics attempted CPR and transported the child to

the hospital, where he was pronounced dead at 7:24 p.m.                    The

attending    physician   noted   the   child    was   unusually    cold   (his

temperature was 84 degrees, when approximately 96 would have been

expected) and had bruising on his forehead and thighs and both

fresh and healed injuries to his rectum; and opined that the child

had been sexually assaulted prior to his death.                   The medical

examiner who performed an autopsy on the child stated that the

cause of death was homicidal violence, including smothering.

     Wyatt was taken to the police station, where he signed three

statements over three days.        His first statement (4 February)

provided:    he was in the laundry room while the child was bathing;

Wyatt returned to the bathroom to find the child underwater; and,

after attempting CPR, he called 911.           On 5 February, Wyatt gave a

similar statement, but, acknowledging he had not told the entire

truth previously, confessed to sodomizing the child before he took

a bath.      On 6 February, again acknowledging he had not been

completely truthful previously because he was scared, Wyatt stated:

while Porter was at work, the child wanted to take a bath; after

the child began running the bath water, Wyatt saw something on the

television that “made [him] feel like having sex”; Wyatt sodomized



                                       3
the child; Wyatt left the room and returned; believing the child

had lodged something in the light socket, he hit the child with a

belt five or six times; the child began screaming; to stop him,

Wyatt held a plastic bag over his mouth; when the child tried to

jerk away from Wyatt, the child hit his head on the tub; Wyatt left

to get ice for the child’s forehead; when Wyatt returned, the child

was not breathing; and after attempting CPR, Wyatt called 911.

     In 1998, Wyatt was found guilty of capital murder of a child

under the age of six, pursuant to TEXAS PENAL CODE ANN. § 19.03(a)(8),

and sentenced to death.       The Texas Court of Criminal Appeals

affirmed.    Wyatt v. Texas, 23 S.W.3d 18 (Tex. Crim. App. 2000).

Wyatt did not seek review by the Supreme Court of the United

States.

     Wyatt sought state habeas relief, raising, inter alia, IAC

claims and a Brady-claim concerning the State’s failure to produce

a hand-written notebook created by Porter after her child’s death

and in preparation for testifying at trial.

     The state habeas trial court filed findings of fact and

conclusions of law, recommending denial of relief. Texas v. Wyatt,

97-F-159-005 (Dist. Ct. Bowie County Tex. 2000).               That court

concluded, inter alia:      Wyatt received effective assistance of

counsel; and his Brady-claim had no merit because there was not a

reasonable   probability   disclosure   of   the   allegedly   suppressed

evidence would have resulted in a different outcome at trial.         Id.


                                  4
The Texas Court of Criminal Appeals denied relief. Ex Parte Wyatt,

No. 97-F-159-5-A (2001).

     In    March    2002,   Wyatt      requested   federal   habeas     relief,

presenting approximately 20 claims. In December 2003, the district

court awarded summary judgment to the State on all but two of those

claims and ordered an evidentiary hearing for those two:                     (1)

whether Wyatt’s trial counsel rendered IAC by failing to inform

Wyatt he could testify during the penalty phase; and (2) whether

the cumulative effect of errors by trial counsel constituted IAC.

USDC Opn., 3 Dec. 2003 Order at 5-6, 34 (USDC Opn. I).                Following

that hearing, the district court denied habeas relief.             USDC Opn.,

18 Oct. 2004 Order at 8 (USDC Opn. II).                 Wyatt appealed and

requested a COA on six claims; the district court granted a COA for

two issues, encompassing three of the claims.            USDC Opn., 9 Dec.

2004 Order at 2 (USDC Opn. III).

                                        II.

     Wyatt’s 28 U.S.C. § 2254 habeas petition is subject to the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.

L. No. 104-132, 110 Stat. 1214 (1996).                See, e.g., Penry v.

Johnson,   532     U.S.   782,   792   (2001).     Wyatt’s   COA   request   is

considered first, followed by the two issues for which the district

court granted a COA.




                                         5
                                 A.

     Under AEDPA, Wyatt must obtain a COA from either the district,

or this, court to appeal the denial of habeas relief on an issue.

28 U.S.C. § 2253(c); FED. R. APP. P. 22(b)(1); Slack v. McDaniel, 529

U.S. 473, 478 (2000).     To obtain a COA, Wyatt must “ma[k]e a

substantial showing of the denial of a constitutional right”.                 28

U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336

(2003); Slack, 529 U.S. at 483.               In that regard, Wyatt 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”.           Miller-El, 537 U.S. at

336 (quoting Slack, 529 U.S. at 484).

     In deciding whether to grant a COA, a federal court is

limited, inter alia, “to a threshold inquiry into the underlying

merit of [Wyatt’s] claim[]”.   Id. at 327.          “This threshold inquiry

does not require full consideration of the factual or legal bases

adduced in support of the claim[].”            Id. at 336.         Instead, our

analysis “requires   an   overview       of   the   claim[]   in    the    habeas

petition and a general assessment of [its] merits”.                  Id.    This

being a death penalty case, “any doubts as to whether a COA should

issue must be resolved in [Wyatt’s] favor”.           Hernandez v. Johnson,

213 F.3d 243, 248 (5th Cir.), cert. denied, 531 U.S. 966 (2000).



                                     6
     For    purposes      of    the    requisite        threshold-inquiry,           we   are

mindful that, in ruling on the merits, the district court was

required to defer to the state court’s adjudication on questions of

law and mixed questions of law and fact, unless the state court’s

“decision    ...    was    contrary      to,       or       involved   an     unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court”.        28 U.S.C. § 2254(d)(1); Hill v. Johnson, 210

F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001).

That decision is contrary to clearly established federal law if it

“reaches a       legal    conclusion     in       direct      conflict      with    a   prior

decision    of    the    Supreme      Court       or   if    it   reaches     a    different

conclusion       than     the      Supreme         Court       based     on       materially

indistinguishable facts”.             Miniel v. Cockrell, 339 F.3d 331, 337

(5th Cir. 2003), cert. denied, 540 U.S. 1179 (2004).

     Likewise, for this threshold-inquiry, we are mindful that, in

ruling on the merits, the district court was required to defer to

the state court’s factual findings unless they “resulted in a

decision that was based on an unreasonable determination of the

facts in [the] light of the evidence presented in the State court

proceeding”.       28 U.S.C. § 2254(d)(2).                     In that regard, those

findings were “presumed to be correct”; Wyatt had “the burden of

rebutting [that] presumption ... by clear and convincing evidence”.

28 U.S.C. § 2254(e)(1).




                                              7
     In the state habeas court, as well as in the district court,

Wyatt   claimed   the    Texas   death   penalty   statute   is   facially

unconstitutional because it lacks uniform and specific requirements

for when prosecutors should seek the death penalty, resulting in

arbitrary and disparate treatment of similarly situated people.

Finding this claim was presented to, but not addressed by, the

state court, the district court addressed it de novo and held it

barred by the non-retroactivity doctrine of Teague v. Lane, 489

U.S. 288, 301 (1989) (generally barring retroactive application of

new rules of criminal procedure).

     In his COA application in district court, however, as in his

application here, Wyatt maintains:       Bush v. Gore involved a change

in substantive law and, therefore, his claim is not Teague-barred.

Decided in 2000, Bush v. Gore held the Equal Protection clause

requires uniform and specific standards for vote counting.            531

U.S. 98.

     Although it appears Wyatt did not rely upon Bush v. Gore in

district court until his COA request, he did raise the Equal

Protection claim that the district court considered, and rejected,

on habeas review.       Accordingly, we will consider Bush v. Gore in

ruling on this COA request.

     In deciding whether to grant a COA on this issue, we need not

address a possible Teague-bar because, on its face, the Bush v.

Gore holding is limited to the facts at issue there — the 2000

                                     8
presidential election.   Id. at 109. Obviously, those facts are not

remotely similar to those at issue here — the State’s seeking

application of the death penalty for the murder of a three-year-old

child, after the child had been sexually assaulted and abused in

other ways.

     For this issue, Wyatt relies almost solely on Bush v. Gore and

does not otherwise demonstrate how, or why, the Texas death-penalty

system violates the Equal Protection Clause.       He has not made the

requisite substantial showing of the denial of a constitutional

right.   Restated, reasonable jurists could not debate whether the

Texas death penalty statute is unconstitutional under Bush v. Gore

or whether the issue deserves encouragement to proceed further.

                                   B.

     For the two issues certified by the district court (Brady-

claim and the procedure for evaluating an IAC claim), we engage in

a merits determination under AEDPA. As discussed, in ruling on the

merits, the district court was required under AEDPA to defer to the

state court’s adjudication on questions of law and mixed questions

of law and fact, unless that “decision ... was contrary to, or

involved   an   unreasonable   application   of,   clearly   established

Federal law, as determined by the Supreme Court”.            28 U.S.C. §

2254(d)(1); Hill, 210 F.3d at 485. Again, a state court’s decision

is contrary to clearly established federal law only if it “reaches

a legal conclusion in direct conflict with a prior decision of the


                                   9
Supreme Court or if it reaches a different conclusion than the

Supreme    Court    based     on   materially    indistinguishable    facts”.

Miniel, 339 F.3d at 337.

      As also discussed, the district court was required to defer to

the state court’s factual findings unless they “resulted in a

decision that was based on an unreasonable determination of the

facts in [the] light of the evidence presented in the State court

proceeding”.       28 U.S.C. § 2254(d)(2).        Again, those findings are

“presumed to be correct”; Wyatt has “the burden of rebutting [that]

presumption ... by clear and convincing evidence”.              28 U.S.C. §

2254(e)(1).

                                        1.

      Wyatt sought a COA on whether the State violated his due

process rights under Brady.          The district court granted the COA,

however, on whether such claimed suppression “constituted only

harmless error”.      USDC Opn. III at 2.       Nevertheless, earlier on the

merits, the district court did not perform a harmless error review;

instead,   its     analysis    rested    on   Brady.    It   held,   somewhat

consistent with the stardard of review imposed by AEDPA, that “the

State court’s denial of this claim was reasonable”.           USDC Opn. I at

8.   (Again, the standard of review under AEDPA is whether the state

court’s decision was “unreasonable”, not whether, as held by the

district court, it was “reasonable”.             Needless to say, different

factors must be considered, as discussed supra.) Like the district


                                        10
court, we review the merits of this claim under Brady.                  In other

words, concerning the language of the COA, we understand “harmless

error” to mean “not material”, as discussed infra.

      Well after Wyatt’s horrific abuse of the child, Porter created

the notebook to aid in preparation for her trial testimony.                    The

State concedes that, neither before nor during trial, did it

produce the hand-written notebook prepared by Porter, the victim’s

mother. It was neither read, nor otherwise presented, to the jury.

Wyatt’s   counsel     became    aware      of     the     notebook   during    his

investigation for state habeas relief.

      The well-known elements for a Brady-claim are:                    (1) the

prosecutor suppressed evidence, (2) favorable to the defense, (3)

and material to guilt or punishment.                    Brady, 373 U.S. at 87.

Evidence is constitutionally material if there is “a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different”.                  United

States v. Bagley, 473 U.S. 667, 682 (1985) (emphasis added); Miller

v. Dretke, 404 F.3d 908, 913-16 (5th Cir. 2005) (emphasizing

“reasonable probability” element of materiality).               This reasonable

probability standard is met if the suppression is significant

enough to undermine confidence in the outcome of the trial.                   Kyles

v.   Whitley,   514   U.S.     419,   434       (requiring    demonstration     of

reasonable   probability       that   result      of    proceeding   would    have

differed had evidence been disclosed).

                                      11
       For assessing materiality, vel non, “the Constitution is not

violated every time the government fails or chooses not to disclose

evidence that might prove helpful to the defense”.                     Id. at 436-37.

Along this line, in determining whether evidence is material for

Brady purposes, we must consider the cumulative effect of all

suppressed       evidence,       rather        than      considering       each   item

individually.       Id.     “We evaluate the tendency and force of the

undisclosed evidence item by item; there is no other way.                           We

evaluate    its    cumulative      effect         for    purposes     of   materiality

separately ....”.         Id. at 437 n.10.

       The state habeas court held:                because the notebook was not

used    before    the   jury,    and    because         there   was   no   substantial

difference between Porter’s testimony and the notebook, its non-

disclosure did not undermine confidence in the outcome of the

trial.    Texas v. Wyatt, 97-F-159-005 (Dist. Ct. Bowie County Tex.

2000).

       Although the State did not produce the notebook, the district

court    found    Wyatt    did   not    satisfy         Brady’s   suppression     prong

because, inter alia, he would have had independent knowledge of the

relevant facts described in it.                   USDC Opn. I at 8; see West v.

Johnson, 92 F.3d 1385, 1399 (5th Cir. 1996) (holding Brady is not

violated where defendant would have known of allegedly suppressed

evidence), cert. denied, 520 U.S. 1242 (1997).                        Wyatt claims he

demonstrated      the   notebook       was    suppressed        for   Brady   purposes,

                                             12
despite the holding of West, because its value was not in its

content but in its inconsistency with Porter’s testimony, with

which he could have impeached her. Likewise, Wyatt claims Porter’s

unchallenged testimony left the jury with the impression that Wyatt

was indifferent to the child’s death and, therefore, affected the

jury’s determination of guilt.

     Because the notebook does not meet the materiality prong of

Brady, as discussed, infra, we need not address whether it was

either suppressed or favorable to Wyatt.          (If those prongs were

addressed,   it   is    arguable   that,   even   if   the   notebook   was

suppressed, it was not favorable to Wyatt.) Regarding materiality,

Wyatt points to several notebook entries he claims could have been

used to impeach Porter.

     The first contention concerns an entry about “red mark[s]” on

the child, which Porter attributed to Wyatt.            Porter testified

these injuries were severe and involved “welts on his legs and his

butt” and bleeding.       According to Wyatt, with the notebook, he

could have impeached Porter on the severity of the injuries and

left the jury with the impression she was embellishing, affecting

her credibility.       The State maintains the entry, when read in

context, is not significantly different from her testimony.             The

notebook stated: “He showed me his butt[.]        [There] were a lot more

mark[s] there”.        As the state habeas court found, this is not

substantially different from Porter’s testimony.


                                    13
     Second, Porter’s notebook reflects that, prior to the day of

the child’s death, Wyatt denied whipping the child when Porter

confronted Wyatt. In her testimony, Porter did not mention Wyatt’s

denial.   He claims that, because that testimony went unchallenged,

it left the impression Wyatt admitted causing the child’s injuries.

With the notebook, Wyatt contends he could have presented his

denial and challenged the impression he caused the injuries.    The

State responds that Wyatt would have known he denied whipping the

child and, thus, could have used that information to impeach

Porter, even without the notebook.     In any event, this omission

provides, at best, minor impeachment value in the light of Wyatt’s

confession to sexually abusing the child.     (Additionally, use of

this evidence for impeachment would have been minimal in the light

of the testimony of Porter and David Willis, the child’s father:

both admitted they had each previously beaten the child on at least

one occasion.)

     Third, Porter testified that, after leaving the child alone

with Wyatt and coming home to find the child naked and having had

a bowel movement in bed, she noticed he seemed afraid of Wyatt.

For this specific instance, the notebook does not mention that

fear.   Wyatt claims:   without Porter’s testifying the child seemed

afraid, there would be no inference his bowel movement was a result

of Wyatt’s sodomizing him; and Wyatt could have impeached Porter

for embellishing her trial testimony. The State points to portions


                                  14
of the notebook that record Porter’s noticing a change in the

child’s attitude toward Wyatt and his being afraid of him.              For

this point, in the light of these statements taken as a whole, the

notebook would have had no impeachment value.

     Fourth, Porter testified she noticed a scratch while giving

the child a bath, and, when she asked the child what happened, he

looked at Wyatt, but Wyatt did not offer an explanation.                The

notebook does not mention that.         Had he had the notebook, Wyatt

maintains he could have impeached Porter with her failure in the

notebook to mention the scratch and Wyatt’s failure to explain it.

Again,   this   omission   does   not    rise   to   the   level   of    an

inconsistency; any impeachment value is minimal.

     Fifth, Porter testified to two instances, the day before the

child’s death, when he appeared afraid of Wyatt.      The notebook does

not mention either instance.      Wyatt maintains that, based on such

non-entries, he would have been able to demonstrate to the jury

that Porter was fabricating her testimony. According to the State,

as for many of the passages in the notebook on which Wyatt relies,

Wyatt was present during the events about which Porter testified;

he would, therefore, have had all the information needed to impeach

Porter if her testimony was false.       Again, this omission is not an

inconsistency that provides meaningful impeachment value.

     Sixth, Porter testified that, after leaving the child alone

with Wyatt, Porter came home earlier than expected and found


                                   15
Wyatt, with his shirt off, standing at the child’s door.          According

to Wyatt, he could have impeached Porter for her failure to mention

this in the notebook.    The State again notes Wyatt would have known

if Porter’s description of the facts was untrue, and, if so, could

have impeached her.          Wyatt also contends this testimony left

unchallenged the inference Wyatt was about to sexually abuse the

child.    In any event, Wyatt confessed that he sexually abused the

child just before his death.       In the light of Wyatt’s confession,

this omission has little, if any, impeachment value.

     Finally, the notebook does not mention Porter’s impression,

about which she testified at trial, that Wyatt was not upset when

he called her at work to tell her the child was injured (the

injuries from which he died).       Wyatt contends he could have used

this omission to demonstrate Porter’s testimony was contrived to

harm Wyatt.   As the State points out, however, Porter’s testimony

in this regard was already impeached by testimony of one of the

first officers to respond to Wyatt’s 911 call. That Porter omitted

this from the notebook is of no additional impeachment value.

     Having evaluated each notebook entry, or omission, cited by

Wyatt, we now evaluate their cumulative effect for purposes of the

requisite Brady materiality.       As discussed, evidence is material

for that purpose only if there is a reasonable probability that,

had the    evidence   been    disclosed,   the   result   would   have   been

different.    Bagley, 473 U.S. at 682.           Pursuant to AEDPA, and


                                    16
considering the notebook as a whole, Wyatt has not demonstrated as

unreasonable the state habeas court’s conclusion that the notebook

entries or omissions do not undermine confidence in the jury

verdict.

     First, the notebook was written in preparation for Porter’s

trial testimony, well after Wyatt’s abuse of the child.          Because it

was not written contemporaneously, the notebook, as a whole, merely

recounted Porter’s memory of the events. If Porter’s testimony was

inconsistent with Wyatt’s memory, he could have impeached Porter

without the use of the notebook.          Again, the jury was not aware of

the notebook.   It is not as if the jury had it, but Wyatt was not

allowed to question Porter about it.

     Furthermore, the notebook does not present any new evidence

that is meaningfully inconsistent with Porter’s trial testimony.

The differences and omissions cited by Wyatt are insignificant in

the light of the record as a whole, especially in the light of

Wyatt’s confessing to having sexually assaulted the child, whipping

him, and covering his face with a plastic bag just prior to his

death.

     In sum, Wyatt fails to demonstrate that the state habeas

court’s    decision   was   either   “contrary      to,   or   involved   an

unreasonable application of, clearly established Federal law” or

“was based on an unreasonable determination of the facts in [the]

light of the evidence presented in the State Court proceeding”.


                                     17
Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir.) (quoting 28 U.S.C.

§ 2254(d)(1),(2); emphasis added), cert. denied, 537 U.S. 953

(2002).

                                  2.

     The other certified issue is whether the holding of Ring, 536

U.S. 584, is inconsistent with the analytical framework for IAC

claims under Neal, 286 F.3d 230.          Neal relied on Strickland;

therefore, we will analyze this as an IAC claim.             (The State

correctly re-phrases the issue as being a Strickland issue.)             For

this certified issue, Wyatt presents the substance of two IAC

claims he raised in the state habeas court and the district court.

He maintained his counsel failed to: (1) inform him that he could

testify at   sentencing   (for   which   the   district   court   held    an

evidentiary hearing); and (2) investigate Wyatt’s military service,

which would have revealed that he was honorably discharged from the

United States Marine Corps.

     In denying habeas relief, the state court found Wyatt’s

counsel presented substantial evidence during the punishment phase

of trial and, concluded, as a matter of law, that Wyatt received

effective assistance of counsel during this phase. Texas v. Wyatt,

97-F-159-005 (Dist. Ct. Bowie County Tex. 2000).

     After performing a Strickland analysis, the district court

rejected the claims. Concerning the prejudice prong, it concluded:

there was “not a reasonable probability that, had the jury heard


                                  18
Wyatt’s testimony [including about his good military record] during

the punishment phase of his trial, the result of that proceeding

would have been different”.        USDC Opn. II at 6.        (Pursuant to

AEDPA, however, and as discussed supra, the district court should

have   decided   whether   the   state    habeas   court’s   decision   was

unreasonable.)

       Instead, the district court granted a COA on the narrow issue

of whether the 2004 decision in Ring, 536 U.S. at 609 (holding that

the Sixth Amendment requires the jury, not the judge, to determine

the existence of aggravating circumstances required for imposing

the death penalty) is inconsistent with the framework for IAC

claims employed by our 2002 en banc decision in Neal.         As Wyatt did

with his Bush v. Gore COA request, it appears that the IAC claim

based on Ring was not presented until his COA request in district

court. (Needless to say, this is not consistent with the procedure

to be followed under AEDPA.)        This notwithstanding, that court

granted a COA on this issue.             In the light of that court’s

considering, and granting, a COA on this issue, even though it was

being raised for the first time in the request, we will, dubitante,

consider it here.

       As noted, because Neal employs the well-established Strickland

test for IAC claims, we analyze this claim under Strickland.        Wyatt

contends: (1) the district court substituted its judgment for that

of the jury, in violation of Ring, when it determined neither

                                    19
instance    of   ineffective   assistance    would      have   resulted   in    a

different    outcome    at   sentencing;    and   (2)    Ring’s   holding      is

inconsistent with an appellate court’s applying the Strickland

prejudice analysis by substituting its determinations for those of

the jury.

     Wyatt’s claim is without merit.        (Because Waytt’s claim is so

lacking, we need not consider whether it is Teague-barred.)               Post-

Ring, the Supreme Court reiterated that Strickland articulates the

proper test for IAC claims.       Wiggins v. Smith, 539 U.S. 510, 521

(2003).    Furthermore, Strickland specifically contemplates review

of aggravating and mitigating factors by appellate courts in death

penalty cases.     466 U.S. at 695.

                                   III.

     Wyatt’s request for a COA is DENIED; the denial of habeas

relief is AFFIRMED.

                       COA DENIED; DENIAL OF HABEAS RELIEF AFFIRMED




                                    20
