                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 27, 2003

                                                         Charles R. Fulbruge III
                     _______________________                     Clerk

                           No. 03-20125

                     _______________________


MICHAEL WAYNE RICHARD,

                                               Petitioner-Appellant,

                               versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                                               Respondent-Appellee.

________________________________________________________          _____

          Appeal from the United States District Court
               for the Southern District of Texas
                           (02-CV-469)


Before JONES, STEWART, and DENNIS, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

          Michael Wayne Richard (Richard) was convicted of capital

murder and sentenced to death.     Richard seeks a certificate of

appealability (COA) on two claims to challenge the district court’s

denial of his 28 U.S.C. § 2254 petition for habeas corpus relief.

We deny a COA on his claims.




     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                          I.     BACKGROUND

          Richard was convicted in Texas state court for fatally

shooting Marguerite Lucille Dixon in the course of a burglary. The

Texas Court of Criminal Appeals reversed the conviction for failure

to comply with Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106

L. Ed. 2d 256 (1989).   On retrial, Richard was again sentenced to

death for capital murder; the Texas Court of Criminal Appeals

affirmed Richard’s conviction and denied him habeas corpus relief.

The United States Supreme Court denied Richard’s petition for writ

of certiorari.   In February 2002, Richard filed a federal petition

for writ of habeas corpus.    The district court denied the petition

and refused to issue a COA.     Richard asks this Court to grant a COA

on two claims; each requested COA is denied.

                          II.     DISCUSSION

          Richard’s 28 U.S.C. § 2254 habeas petition, filed in

February 2002, is subject to the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA).      See Penry v. Johnson, 532 U.S. 782,

792, 121 S. Ct. 1910, 1918, 150 L. Ed. 2d 9, 22 (2001).       Richard

must obtain a COA before he can appeal the district court’s denial

of habeas relief.   28 U.S.C. § 2253(c)(1); Slack v. McDaniel, 529

U.S. 473, 478, 120 S. Ct. 1595, 1600, 146 L. Ed. 2d 542, 551

(2000).

          To obtain a COA, Richard must make a “substantial showing

of the denial of a constitutional right.”      28 U.S.C. § 2253(c)(2);


                                    2
Slack, 529 U.S. at 483, 120 S. Ct. at 1603, 146 L. Ed. 2d at 554.

When a district court rejects a constitutional claim on the merits,

a COA will be granted only if the applicant “demonstrate[s] that

reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.”             Miller-El v.

Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 1040, 154 L. Ed. 2d 931,

950-51 (2003) (quoting Slack, 529 U.S. at 484).      When the denial of

relief is based on procedural grounds, Slack provides a two-prong

test for determining whether a COA should issue: the applicant must

show (1) that “jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional

right” and (2) that “jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.”

Slack, 529 U.S. at 484.         Each prong of the test is part of a

threshold inquiry, and a court may dispose of the application by

resolving the issue whose answer is more apparent from the record

and arguments.    Id. at 485.

A.   Richard’s appointed counsel

            Richard argues that he was denied the right to counsel

and due process under the Sixth and Fourteenth Amendments when the

state   trial    court   removed   his   court-appointed   second-chair

attorney, Stephen Taylor, and appointed Christopher Goldsmith to

represent   Richard.      The   district   court   concluded   that   the

nonretroactivity rule of Teague v. Lane, 489 U.S. 288, 109 S. Ct.



                                    3
1060, 103 L. Ed. 2d 334 (1989), barred Richard’s claim, and that,

in any event, his claim was meritless.         Because reasonable jurists

would debate neither the district court’s Teague ruling nor the

district court’s assessment of Richard’s constitutional claim, we

deny a COA on this claim.

             Richard argues that under Cuyler v. Sullivan, 446 U.S.

335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), and Wheat v. United

States, 486 U.S. 153, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988), a

court may not interfere with an indigent defendant’s right to

“counsel of his choice” absent a conflict of interest or serious

potential for a conflict. This court has “repeatedly held that the

right to counsel guaranteed by the Sixth Amendment does not include

the right to counsel of one’s choice.”         United States v. Breeland,

53 F.3d 100, 106 n.11 (5th Cir. 1995).            In Yohey v. Collins, 985

F.2d 222 (5th Cir. 1993), for example, when a Texas trial court,

against Yohey’s wishes, replaced his counsel with another attorney,

this court held that the “right to counsel guaranteed by the Sixth

Amendment does not include the right to counsel of Yohey’s choice.”

Id. at 228.

             Here, Richard does not complain of the adequacy of his

ultimate     representation.     He   simply   argues   that    an   indigent

defendant has a right to appointed “counsel of choice.” Reasonable

jurists would not debate the district court’s conclusion that this

rule   was    not   “dictated   by    precedent    existing    at    the   time



                                       4
[Richard’s] conviction became final” Teague, 489 U.S. at 301, and

therefore cannot serve as a basis for habeas relief.

            The district court also concluded that even if the rule

Richard seeks were not barred by Teague, any error in this case

would be harmless because it did not result in “actual prejudice.”

Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L.

Ed. 2d 353 (1993) (concluding that “habeas petitioners may obtain

plenary review of their constitutional claims, but they are not

entitled to habeas relief based on trial error unless they can

establish that it resulted in ‘actual prejudice.’”).               Richard does

not contend that Goldsmith’s performance was in any way deficient.

Because Richard       received   competent       representation,      jurists   of

reason would not find debatable the district court’s conclusion

that neither Richard’s Sixth nor Fourteenth Amendment rights were

violated.

B.   Opportunity to inform the jury of parole eligibility and to
     explain or deny certain statements made at trial

            Richard    argues    that       he   was   denied   the    effective

assistance of counsel and due process guaranteed by the Sixth and

Fourteenth Amendments because he was not allowed to inform the jury

of Texas law governing parole ineligibility and because “he was

unable to    explain    or   deny”   certain      statements    made    at   trial

concerning the future dangerousness of prisoners released from

death row. Because jurists of reason would not debate the district




                                        5
court’s conclusion that Richard’s arguments are meritless and

barred by Teague, we deny a COA.

          In Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct.

2187, 129 L. Ed. 2d 133 (1994), the Supreme Court held that at the

time of death penalty deliberations, the jury should be informed

that a defendant is ineligible for parole.         This court “has

repeatedly refused to extend the rule in Simmons beyond those

situations in which a capital murder defendant is statutorily

ineligible for parole.” Green v. Johnson, 160 F.3d 1029, 1045 (5th

Cir. 1998).   Simmons does not apply to the present case because if

Richard received a life sentence, he would be eligible for parole

after he served a minimum of 20 years in prison.

          Richard’s reliance on Skipper v. South Carolina, 476 U.S.

1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986), and Gardner v. Florida,

430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977), does not

support his argument.   Skipper held that evidence of a defendant’s

good behavior in prison should be admitted during the punishment

phase of a capital sentencing hearing as relevant mitigating

evidence, 476 U.S. at 8, and Gardner held that a death sentence

could not constitutionally be based on portions of a presentence

investigation report that were not disclosed to counsel for the

parties, Gardner, 430 U.S. at 351.     Richard relies on these cases

to argue that his due process rights were violated when he was

unable to explain or deny certain statements made during trial.

Specifically, he complains of testimony elicited by the State on

                                   6
cross-examination of a professor at the Criminal Justice Center at

Sam Houston State University that at least one former death row

inmate released from prison killed a person in free society and of

the prosecutor’s reiteration of that statement during the State’s

punishment argument.

            Simmons involves application of the principles of Skipper

and Gardner to the South Carolina sentencing scheme, Simmons, 512

U.S. at 164-65, but this court has repeatedly distinguished the

Texas sentencing     scheme.      An    opportunity   to    explain   or   deny

statements    with   information       regarding   parole    eligibility     is

“required only where state law provides for life imprisonment

without possibility of parole as an alternative to the death

penalty.”    Woods v. Cockrell, 307 F.3d 353, 361 (5th Cir. 2002).

            Although this issue is easily disposed of on the merits,

Richard is also not entitled to a COA because reasonable jurists

would not debate that Richard’s interpretation of Simmons, Skipper,

and Gardner would constitute a “new rule” of constitutional law

barred by Teague.     See Wheat v. Johnson, 238 F.3d 357, 361 (5th

Cir. 2001).

                           III.    CONCLUSION

            For the foregoing reasons, we deny Richard’s request for

a COA on both claims.

            COA DENIED.




                                        7
8
