     Case: 19-70009      Document: 00515424700         Page: 1    Date Filed: 05/21/2020




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

                                                                                    FILED
                                      No. 19-70009                              May 21, 2020
                                                                               Lyle W. Cayce
DAVID SANTIAGO RENTERIA,                                                            Clerk


              Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                                USDC 3:15-CV-62


Before JONES, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       David Renteria seeks a certificate of appealability to appeal the district
court’s denial of his federal habeas corpus petition under 28 U.S.C. § 2254. We
find that Renteria has not shown that jurists of reason could debate whether
the district court erred in denying his petition, and so we deny his application.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 19-70009
                                       I.
      On November 18, 2001, five-year-old Alexandra Flores disappeared from
a Wal-Mart store where she was shopping with her parents. The next day, in
an alley sixteen miles from the Walmart, her body was discovered―nude,
partially burned, and with a plastic bag over her head. A medical examiner
found that the girl had received two blows to the head and was manually
strangled before being set on fire.
      Several people observed Renteria and his van at the Walmart on the day
Flores disappeared. One of those people was a Walmart security guard who
recalled speaking with Renteria because he had left his van running outside
the store.   Walmart surveillance video showed a man―wearing clothing
resembling Renteria’s―walking out of the store with Flores.        A search of
Renteria’s van disclosed blood stains with Flores’ DNA. A latent print lifted
from the plastic bag found over Flores’ head matched Renteria’s palm print.
      Renteria was arrested in El Paso, Texas, on December 3, 2001, and
charged with capital murder in the death of five-year old Alexandra Flores. At
that time, he was a 32-year-old registered sex offender on probation for
committing an indecency offense against an eight-year-old girl. The day of his
arrest, police obtained a written custodial statement, which the district court
summarized:
      Renteria blamed an Azteca gang member―nicknamed
      “Flaco”―and several other people for Flores’s murder. He
      explained he met Flaco while serving time in prison, but claimed
      he did not know the other people. Renteria maintained he
      participated in the offense out of fear the other participants would
      harm his family. He claimed he was “scared and . . . didn’t know
      how to react . . . because they were threatening [his] family.”
      Renteria asserted he only lured Flores out of the Walmart and
      helped Flaco and the others burn and dispose of her body.



                                       2
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                                        No. 19-70009
       Just before trial began in September 2003, Renteria moved for a
continuance after the State disclosed that the victim’s mother was the former
wife of a gang member.               Renteria claimed that he needed more time to
investigate whether the murder was gang-related, as his custodial statement
had suggested. The trial court denied the continuance and did not admit
Renteria’s custodial statement into evidence at trial because it was self-
serving. 1 Renteria v. State, 206 S.W.3d 689, 705―06. (Tex. Crim. App. 2006).
The jury found Renteria guilty of capital murder. Id.
       At his first sentencing trial, the jury found “there [was] a probability that
the defendant would commit criminal acts of violence that would constitute a
continuing threat to society” and that there was not “sufficient mitigating…
circumstances to warrant that a sentence of life imprisonment…rather than a
death sentence be imposed.”              Based upon these answers, the trial court
sentenced Renteria to death.
       On direct appeal, the Texas Court of Criminal Appeals affirmed the
guilty verdict but found that evidence of Renteria’s remorse was improperly
excluded at the punishment trial and vacated the death sentence. At his
second punishment trial, the trial court re-sentenced Renteria to death, and
the Court of Criminal Appeals affirmed. Renteria v. State, No. AP-74,829, 2011




       1   According to Texas law:

       [S]elf-serving declarations of the accused are ordinarily inadmissible in his
       behalf, unless they come under some exception, such as: being part of the res
       gestae of the offense or arrest, or part of the statement or conversation
       previously proved by the State, or being necessary to explain or contradict acts
       or declarations first offered by the State.

        Aldridge v. State, 762 S.W.2d 146, 152 (Tex. Crim. App. 1988) (quoting Singletary v.
State, 509 S.W.2d 572, 576 (Tex. Crim. App. 1974)).
                                              3
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                                      No. 19-70009
WL 1734067, at *1 (Tex. Crim. App. May 4, 2011). 2 The Supreme Court denied
certiorari. Renteria v. Texas, 565 U.S. 1263 (2012).
       After the Court of Criminal Appeals denied Renteria’s three pending
state applications for writs of habeas corpus, he filed for relief in the United
States District Court for the Western District of Texas. The district court
denied relief and a certificate of appealability.            Renteria filed this timely
appeal.
                                             II.
       A state prisoner does not have “an absolute right to appeal” from a
federal district court decision denying a petition for a writ of habeas corpus.
Buck v. Davis, 137 S. Ct. 759, 773 (2017) (citing 28 U.S.C. § 2253(c)(1)). The
prisoner must first obtain a certificate of appealability, which can be issued
from this court “only if the applicant has made a substantial showing of the
denial of a constitutional right.” Id. (quoting 28 U.S.C. § 2253(c)(2)). That is,
the petitioner must establish that “jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Our inquiry,
here, is only a threshold question decided without “full consideration of the
factual or legal bases adduced in support of the claims.” Buck, 137 S. Ct. at
773 (quoting Miller-El, 537 U.S. at 336).
       Additionally, “[i]n determining whether the district court’s denial of a
prisoner’s petition is debatable, this court ‘must be mindful of the deferential
standard of review the district court applied to [the habeas petition] as
required by the AEDPA.’” Williams v. Stephens, 761 F.3d 561, 566 (5th Cir.


       2 The Texas Court of Criminal Appeals has final appellate jurisdiction in criminal
cases and, in death penalty cases, petitioners appeal to the Court of Criminal Appeals rather
than to a Court of Appeals. TEX. CONST., Art. V, §§ 1,5.
                                             4
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                                  No. 19-70009
2014) (quoting Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir.2003)). Where the
state court adjudicated the claim on the merits, “we must defer to the state
court unless its decision ‘was contrary to, or involved an unreasonable
application of clearly established Federal law, as determined by the Supreme
Court of the United States.’” Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000)
(quoting 28 U.S.C. § 2254(d)(1)). A decision is contrary to clearly established
law “if the state court arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if the state court decides a case
differently than [the] Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 412―413 (2000).             The “unreasonable
application” query focuses on whether “the state court identifies the correct
governing legal principle from this Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.” Id. at 413.
                                        III.
      First, Renteria claims that he was tried while incompetent in violation
of the due process clause of the Fourteenth Amendment. And because his trial
counsel failed to request a competency hearing and his habeas counsel failed
to discover documentary evidence that he was not competent to stand trial,
Renteria argues that he also received ineffective assistance of counsel in
violation of the Sixth Amendment. Renteria concedes that because he did not
present his substantive competency or his ineffective-assistance claim to any
state court, they are unexhausted. Under the doctrine of procedural default,
we are generally prohibited from reviewing the merits of such claims. Martinez
v. Ryan, 566 U.S. 1, 9 (2012); Bledsue v. Johnson, 188 F.3d 250, 254 (5th Cir.
1999) (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1(1991)) (The
procedural default rule also applies where “the petitioner fails to exhaust all
available state remedies, and the state court to which he would be required to
petition would now find the claims procedurally barred.”).
                                         5
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                                      No. 19-70009
       Instead, Renteria argues that his ineffective-assistance claim falls under
the exception to the procedural default rule: “[a] prisoner may obtain federal
review of a defaulted claim by showing cause for the default and prejudice from
a violation of federal law.” Martinez, 566 U.S. at 10. In the context of an
ineffective-assistance claim, cause can be established where “appointed
counsel in the initial-review collateral proceeding, where the claim should have
been raised, was ineffective under the standards of Strickland v. Washington,
466 U.S. 668 (1984).” 3 Martinez, 566 U.S. at 14 (cleaned up). “To overcome
the default, a prisoner must also demonstrate that the underlying ineffective-
assistance-of-trial-counsel claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit.” Id. In other words,
Renteria must prove that both his trial counsel and his habeas counsel were
ineffective.
       The district court found no merit to Renteria’s underlying claim that his
trial counsel’s performance was constitutionally deficient. We do not find this
conclusion debatable, so our analysis of Renteria’s ineffective-assistance claim
begins and ends there, and we need not address his habeas counsel’s
performance.
       As to his trial counsel, Renteria claims that he ineffectively failed to
request a competency hearing despite having allegedly clear-cut indicia of
Renteria’s incompetency. A person is incompetent to stand trial if the person
does not have: (1) a rational as well as factual understanding of the proceedings
against him or (2) sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding. Indiana v. Edwards, 554 U.S.


       3 Strickland requires a showing that (1) defense counsel’s performance was deficient
and (2) this deficient performance prejudiced the defense. 466 U.S. at 687. We must find
that trial counsel “made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed . . . by the Sixth Amendment.” Id. at 688. “Judicial scrutiny of counsel’s
performance must be highly deferential.” Id.
                                             6
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                                       No. 19-70009
164, 170 (2008). Renteria argues the latter. Specifically, he points to a report
issued by Dr. Alexandria H. Doyle (the Doyle Report) 4 indicating that: (1)
Renteria suffered from dissociative amnesia, which rendered him “unable to
provide some details of the circumstances and events”; and (2) his description
of the events related to the death of the victim was “confabulated; that is, made
up to cover an inability to remember.”
       The district court correctly observed that a dissociative amnesia
diagnosis is not dispositive. 5 Mays v. Stephens, 757 F.3d 211, 216 (5th Cir.
2014) (“The two are not coextensive: A defendant can be both mentally ill and
competent to stand trial.”). Instead, in these amnesia cases, competency “is a
question to be determined according to the circumstances of each individual
case.” United States v. Swanson, 572 F.2d 523, 526 (5th Cir. 1978). 6
       In performing that inquiry, the district court considered the Doyle
Report along with numerous other factors bearing on Renteria’s competency.
For instance, despite the dissociative amnesia diagnosis, the Doyle Report
itself also indicated that Renteria was “oriented appropriately, [] appeared to
be able to relate to his attorneys, and generally was able to manage his
emotional reactions, and think logically.” Additionally, the court recognized
that other psychological testing was conducted in 2002―at trial counsel’s
request―by Dr. James Schutte, a psychologist appointed by the court. Dr.




       4  Though the report itself is not dated, it reflects that Renteria was evaluated on
1/30/03 and 1/31/03 and bears fax transmittal information dated 1/16/03.
        5 Renteria argues that the district court erred in relying on cases that reject

“amnesia”―as opposed to “dissociative amnesia”―as a viable trial defense. But such a
distinction is irrelevant because, again, the specific diagnosis is not the key inquiry and was
only a factor in the district court’s determination that “Renteria’s claim―that his dissociative
amnesia rendered him incompetent―simply fails.”
        6 This is in recognition that “the district judge is in the best position to make a

determination between allowing amnesia to become an unjustified haven for a defendant and,
on the other hand, requiring an incompetent person to stand trial.” Id. at 526.
                                               7
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                                        No. 19-70009
Schutte’s report 7 concluded that Renteria was “well within the normal range”
and reflected that he had a penchant for responding untruthfully.                         Most
importantly, at the time of his December 2001 arrest, Renteria gave a “five-
page, single spaced, typewritten custodial statement to the police,” which
provided “meticulous details” about various aspects of the crime. Having that
statement enabled trial counsel to investigate whether, as Renteria told the
police, the victim was murdered by an Azteca gang member. Indeed, trial
counsel even questioned the victim’s mother (outside the presence of the jury)
regarding her husband and ex-husband’s potential gang affiliations.
       In due consideration of all of the foregoing, the district court determined
that Renteria failed to establish the requisite “real, substantial and legitimate
doubt as to the mental capacity of the petitioner to meaningfully participate
and cooperate with counsel during a criminal trial.” Bruce v. Estelle, 536 F.2d
1051, 1058–59 (5th Cir. 1976) (quoting Bruce v. Estelle, 483 F.2d 1031, 1043
(5th Cir. 1973)). It followed, then, that Renteria did not overcome the “strong
presumption” that his trial counsel’s decision to forego a competency hearing
was “within the wide range of reasonable professional assistance.” Strickland,
466 U.S. at 689. No jurist of reason could debate the district court’s conclusions.
       That trial counsel formed a defense strategy around Renteria’s police
statement does not, as Renteria argues, raise questions about his mental
health or trial counsel’s effectiveness. 8 This is true even crediting the Doyle
Report’s vague assessment that Renteria’s “descriptions of some of his actions
are incredible and appear confabulated” (emphasis added). The record



       7  Dr. Schutte’s report, like Dr. Doyle’s is not dated but has fax transmittal information
dated 6/17/2002, and the district court opinion notes that counsel requested an appointment
with Dr. Schutte at a March 2002 hearing.
        8 We note that Renteria’s argument, in this regard, seems disingenuous considering

that his brief later advances a defense theory that also relies on the veracity of Renteria’s
police statement.
                                               8
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                                        No. 19-70009
demonstrates that trial counsel’s decision to pursue this defense was made
after he weighed the Doyle Report against his own thorough investigation into
Renteria’s competency and the other information that was available to him. 9
Indeed, counsel requested two mental health evaluations and there was a
“rumor from the gang investigators in El Paso County,” which could have
confirmed Renteria’s supposedly confabulated police statement. These types
of “strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” Strickland, 466
U.S. at 690.
       Thus, we are also unable to debate the district court’s conclusion that
pursuing this defense “was a reasonable, strategic decision based on the facts
known to counsel at the time of trial.” 10 Livingston, 107 F.3d at 306; Green v.
Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997) (finding effective assistance
where “[t]here [wa]s sufficient evidence demonstrating that the decision not to
proffer an insanity defense was a conscious and informed tactical one.”)
(internal quotations removed). Renteria’s first argument does not provide
grounds to issue a certificate of appealability.
                                               IV.
       Renteria next variously argues that his Sixth, Eighth, and Fourteenth
Amendment rights were violated when the trial court precluded testimony
from his parole expert, William Habern. During Renteria’s punishment trial,
the jury was instructed, in accordance with Article 37.071 of the Texas Code of



       9   The postconviction declaration by Renteria’s psychologist agreeing that his
symptoms were consistent with dissociative amnesia are irrelevant to our inquiry here. Trial
counsel is judged on by the “facts known to [him] at the time of trial.” Livingston v. Johnson,
107 F.3d 297, 306 (5th Cir. 1997) (emphasis added).
        10 We also find no error in the district court’s decision to deny Petitioner’s request for

an evidentiary hearing. Renteria has identified no factual dispute, which if resolved in his
favor, would entitle him to relief. See Garcia v. Davis, 704 F. App’x 316, 324-25 (5th Cir 2017)
(citing Norman v. Stephens, 817 F.3d 226, 235 (5th Cir. 2016)).
                                                9
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                                  No. 19-70009
Criminal Procedure, that if Renteria was sentenced to a life term, he would
become eligible for release on parole after the actual time served by the
defendant equaled forty years.      The jury was also informed of Renteria’s
additional twenty-year and ten-year sentences for his child indecency offense
and driving while intoxicated felony, respectively.
      Mr. Habern was prepared to testify that Renteria would not be eligible
for parole for 47.5 years. The seven-and-a-half-year year discrepancy was the
product of Mr. Habern’s calculation that Renteria would be required to serve
part of those twenty-year and ten-year sentences on top of his life sentence.
Because the jury was instructed that he would become parole eligible seven-
and-a-half years early, Renteria contends, he was sentenced based upon jurors’
consideration of false information in violation of his due process rights. The
district court disagreed, and we do not find its conclusion debatable.
      Renteria is correct that a sentencer’s consideration of false information
material to the sentencing decision renders the sentencing procedure invalid
as a violation of due process. Townsend v. Burke, 334 U.S. 736, 740-741 (1948);
United States v. Tucker, 404 U.S. 443, 447 (1972). To that end, the district court
found that:
      [T]he jury had before it evidence that Renteria would serve at least
      40 calendar years on a life sentence for capital murder of Flores,
      Renteria faced additional sentences of twenty years for indecency
      with a child and ten years for felony DWI, and Renteria’s expert
      witness opined the State would never release him from prison.
      Renteria has not met his burden of showing his due process rights
      were violated because he was, in fact, sentenced based on accurate
      information. He is not entitled to habeas relief on his due process
      claim.

      Renteria faults the district court for conflating “parole eligibility, which
is an objective fact that can be readily determined” with “when a person will
actually be paroled, which is admittedly a more subjective and less certain

                                       10
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                                      No. 19-70009
determination.” But this argument fails because at the time of Renteria’s
punishment trial, it was unknown whether his life sentence would be “stacked”
onto the prior sentences or served concurrently. Mr. Habern’s proffered
testimony that Renteria’s sentences would be stacked and, therefore, that he
would not be eligible for parole for 47.5 years was pure speculation. Mr.
Habern conceded as much.              Indeed, the only knowable fact regarding
Renteria’s parole was―as the trial court instructed―that once he began serving
a life sentence, Renteria would be eligible after forty years. 11 We therefore
agree with the district court and cannot say that Renteria’s sentence was
predicated on inaccurate information. Rhoades v. Davis, 914 F.3d 357, 375
(5th Cir.), cert. denied, 140 S. Ct. 166 (2019) (permitting testimony that
defendant “would have been technically eligible for emergency furlough had he
received a life sentence” even where such a furlough was unlikely).
       Nor was Renteria entitled to present Mr. Habern’s testimony to explain,
deny, or mitigate evidence of his future dangerousness. Renteria’s claim, at its
core, relies on Simmons v. South Carolina, 512 U.S. 154 (1994). In Simmons,
the Supreme Court held that due process requires a sentencing jury
considering a death sentence be informed if a defendant is parole ineligible.
Id. at 156. But as explained by the district court, Renteria does not enjoy such
a right because our circuit has “reject[ed] an extension of Simmons beyond
situations in which a defendant is statutorily ineligible for parole.” Montoya
v. Scott, 65 F.3d 405, 416 (5th Cir. 1995). Where, as here, “a defendant’s
ineligibility is a matter of fact, i.e., the defendant probably will not be eligible
for parole, then the evidence is purely speculative (maybe even inherently
‘untruthful’) and therefore cannot positively deny future dangerousness.”


       11 For this same reason, the jury was not presented with a “false choice of sentencing
options” in violation of the Eighth Amendment. As explained supra, there was nothing false
or misleading about the jury instruction provided.
                                             11
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                                       No. 19-70009
Allridge v. Scott, 41 F.3d 213, 222 (5th Cir. 1994). Renteria has made no
argument justifying a divergence from our precedent in this instance.
       Because a reasonable jurist could not debate the district court’s
conclusions―that the state court did not rule contrary to, nor did it
unreasonably apply, law articulated by the Supreme Court― we cannot issue
a certificate of appealability on Renteria’s second argument either.
                                             V.
       Finally, Renteria seeks review of the district court’s denial of his motion
for additional funding to investigate a new witness statement that allegedly
corroborates his custodial statement. “We review the denial of funding for
investigative or expert assistance for an abuse of discretion. [A] COA is not
necessary to appeal the denial of funds for expert assistance or investigative
services.” Wilkins v. Davis, 832 F.3d 547, 551–52 (5th Cir. 2016) (internal
citations omitted). “In those cases in which funding stands a credible chance
of enabling a habeas petitioner to overcome the obstacle of procedural default,
it may be error for a district court to refuse funding.” Ayestas v. Davis, 138 S.
Ct. 1080, 1094 (2018). Therefore, the court did err in denying Renteria’s
motion on grounds that his claims are unexhausted.
       Rather, district courts are to determine whether the “the proposed
services . . . [are] ‘reasonably necessary’ for the applicant’s representation.” Id.
at 1094. Whether the service is reasonably necessary depends, in part, upon
“the potential merit of the claims that the applicant wants to pursue.” Id.
Renteria posits that further investigation into the new witness statement
“could be relevant” to three claims: (1) a claim under Brady v. Maryland 12; (2)


       12 373 U.S. 83, (1963). A Brady violation occurs when the prosecution fails its
affirmative duty to produce “evidence favorable to an accused . . . where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Id. at 87. “[T]he duty to disclose such evidence is applicable even though there
has been no request by the accused.” Strickler v. Greene, 527 US 263, 279 (1999).
                                             12
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                                       No. 19-70009
a new claim for ineffective assistance of counsel; and (3) an actual innocence
claim.      The statement expresses that the witness’ ex-husband told her
information relating to the death of Flores.
       As to Renteria’s Brady and ineffective-assistance claims, both lack merit
for the same reason: the statement was not provided to police until April 23,
2018―long after Renteria was convicted and sentenced in fall 2003. In her
statement, the witness expressed that she did not come forward “back then
because [she] was afraid” her ex-husband would retaliate against her and her
children. Thus, she did not inform authorities that she suspected her ex-
husband’s involvement in Flores’ death until April 23, 2018. 13 Accordingly, at
the time of trial, there was no witness statement that the prosecution could
have “suppressed” for the purpose of a Brady claim. United States v. Cutno,
431 F. App’x 275, 277 (5th Cir. 2011). Nor can Renteria establish that his trial
counsel’s performance was deficient for failing to find a document that did not
exist. Newbury v. Stephens, 756 F.3d 850, 860 (5th Cir. 2014) (affirming
district court’s holding that “trial counsel could not be expected to discover and
present evidence that no longer existed.”). Finally, Renteria’s last claim also
fails because “claims of actual innocence based on newly discovered evidence
have never been held to state a ground for federal habeas relief absent an
independent constitutional violation occurring in the underlying state criminal
proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993). As established
herein, no such constitutional violation occurred.



       13 Renteria insists that the witness is “equivocal” on whether she provided information
on his case before his trial. He points to a paragraph where the witness explains that her ex-
husband was arrested for an unrelated attempted murder and that she “did talk to detectives
on that case, and [] gave a written statement back then.” The statement she references is
clearly one given regarding her ex-husband’s attempted murder case, not Renteria’s. She did
not indicate when the statement was given, who it was given to, or describe the substance of
the statement. We are not convinced that such a statement could support Renteria’s Brady
or ineffective-assistance claims.
                                             13
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                                 No. 19-70009
       In sum, although the district court erred, we find remand unnecessary.
Renteria seeks funds to pursue claims that lack merit; therefore, the funding
he seeks is for investigative services not reasonably necessary for his
representation. Ayestas, 138 S. Ct. at 1094.
                                       VI.
      We deny Renteria’s application for a certificate of appealability and
affirm the district court’s denial of his motion for additional funding.




                                       14
