                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                       REVISED JANUARY 25, 2006
                                                              December 28, 2005
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                   Clerk


                             No. 05-70007


ROY LEE PIPPIN

                       Petitioner - Appellant

v.

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

                       Respondent - Appellee



          Appeal from the United States District Court
               for the Southern District of Texas


Before KING, Chief Judge, and HIGGINBOTHAM and PRADO, Circuit
Judges.

KING, Chief Judge:

     Petitioner-appellant Roy Lee Pippin seeks a certificate of

appealability (COA) to appeal the district court’s summary

judgment dismissal of his petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254.     Because Pippin cannot make a

substantial showing of the denial of a constitutional right, we

DENY his application for a COA.

                            I.   BACKGROUND

     Pippin owned and operated an air conditioning business known


                                  -1-
as Pippin Services.     In December 1993, Pippin became involved in

a money laundering scheme to funnel proceeds from the sale of

Colombian cocaine in the United States to Mexico, using air

conditioners and modified gas tanks of trucks to transport large

sums of money across the Mexican border.    When approximately $2

million in drug proceeds was reported missing, Pippin rented a

white panel van from PV Rentals and reserved two rooms at a Motel

6 on April 27, 1994.1    At Pippin’s request, Abraham Pacheco, an

employee at Pippin Services, took two men, Elmer Buitrago and his

cousin, Fabio Buitrago, to the Motel 6 and held them captive

against their will for several days.2    Before dawn on May 4,

1994, Pippin and Pacheco took Elmer and Fabio Buitrago to a

warehouse in the rented van.    Pippin then shot them each

approximately four times through a pillow to muffle the sound,

and both men then left the warehouse to get rid of the murder

weapon.   Shortly thereafter, Houston Police Officer Eddie Parodi,

responding to a call of criminal mischief in progress at the

apartment complex located directly behind the warehouse, arrived

     1
          Pippin’s immediate supervisor in the money laundering
scheme was a man identified in the record as “Alfredo.” When the
missing money was discovered, Pippin apparently proceeded with
the kidnapping plot under direct orders from Alfredo.
     2
          The record shows that Pippin paid $500 per shift to
three employees from his air conditioning business (Aaron Loweth,
Flavio Salazar, and Jorge Pulido) to assist in holding the two
men captive. Although Pippin and his wife stayed in the next
room for a short time, Pippin would generally only visit the
hotel to monitor the situation and occasionally bring food, beer,
and drugs to the captors.

                                  -2-
at the scene and found the fatally wounded Elmer Buitrago crying

out in English and Spanish for help.3

     Before the ambulance arrived, Buitrago spoke with Officer

Parodi and identified Pippin as the shooter.   Buitrago described

Pippin as a white male, approximately 5'9" and 200 pounds, with

sandy brown hair.4   Buitrago also claimed that after Pippin shot

him in the warehouse, he was able to hit Pippin with a pipe and

escape.   Garza later testified that he also heard Buitrago say

“Pippin shot me” and mention the name “Roy.”   Buitrago died later

that day at the hospital from his gunshot wounds.   The body of

Fabio Buitrago was not discovered until the next day, when

Lieutenant Richard Maxey returned to the warehouse to obtain

statements from witnesses.   Upon further investigation, the

police found eight fired nine-millimeter cartridge cases from a

semiautomatic weapon on the right side of the room and some

bullet holes and fired bullets lodged in the north wall of the

warehouse.

     Law enforcement officers arrested Pippin on June 28, 1994 at

a friend’s house.    At his trial, Pippin admitted to participating

     3
          Warren Garza, a security guard on duty at the apartment
complex at the time, assisted Officer Parodi in finding the
source of the commotion that resulted in the calls from concerned
residents. Before Officer Parodi arrived at the scene, Garza had
noticed two men fitting the physical descriptions of Pippin and
Pacheco driving around the apartment complex in a white van.
     4
          Pippin is a white male with sandy brown hair. At
trial, he testified that he is approximately 6'1" and weighs
between 210 and 220 pounds.

                                 -3-
in the aggravated kidnappings of Elmer and Fabio Buitrago but

denied killing any of them or even being present when they were

killed.   Charles Anderson, a ballistics expert for the Houston

Police Department, testified about a ballistics report he

prepared regarding the bullets and cartridge cases found at the

crime scene.    Both the prosecutor Julian Ramirez and Pippin’s

defense attorneys Richard Wheelan and Joan Campbell had access to

Anderson’s report well in advance of the trial.

     On September 15, 1995, Pippin was convicted of capital

murder for intentionally killing more than one person during the

same criminal transaction, and for killing Elmer Buitrago during

the course of a kidnapping.    Despite the presentation of

mitigating evidence during the punishment phase of his trial,5

Pippin was sentenced to death.    The Texas Court of Criminal

Appeals affirmed his conviction and sentence.     Pippin v. State,

No. 72,252 (Tex. Crim. App. May 21, 1997).

     Pippin filed his original state habeas corpus petition on

May 18, 1998.    On July 11, 2001, he filed a second petition and

supplemental memorandum of law raising several new claims.      On

August 3, 2001, the state trial court entered an order construing


     5
          Pippin’s mitigating evidence primarily consisted of the
testimony of his ex-wife and her mother that he was not a violent
person. Dr. Walter Quijano, a clinical psychologist, also
testified that some studies demonstrate that violent behavior
decreases with an inmate’s age. Pippin does not challenge the
trial court’s admission of mitigating evidence at the punishment
phase in his request for a COA.

                                 -4-
both the second application and the supplemental memorandum as

successive petitions.   In a per curiam order issued on February

20, 2002, the Texas Court of Criminal Appeals expressly adopted

the trial court’s findings and conclusions, denied Pippin’s first

petition on the merits, and dismissed the other two as abuses of

the writ.   Ex parte Pippin, Nos. 50,613-01, -02, -03 (Tex. Crim.

App. Feb. 20, 2002) (unpublished).     The Supreme Court of the

United States subsequently denied Pippin’s petition for a writ of

certiorari on October 7, 2002.    Pippin v. Texas, 537 U.S. 845

(2002).

     On June 21, 2002, Pippin filed his original federal habeas

petition in the District Court for the Southern District of

Texas.    The district court subsequently granted Pippin’s motion

for appointment of new counsel on December 13, 2002, which

resulted in an amended petition that was filed on May 14, 2003.

In two separate memoranda and orders, issued on November 23, 2004

and January 25, 2005, respectively, the district court granted

the respondent’s motion for summary judgment to deny habeas

relief and sua sponte declined to issue a COA.6

     6
          In the first memorandum and order, the district court
granted respondent Dretke’s motion for summary judgment on
twenty-four of Pippin’s twenty-six claims. Two claims were
preserved for additional limited discovery and supplemental
briefing: (1) Pippin’s claim that the prosecutor failed to
disclose exculpatory evidence and (2) Pippin’s claim that the
state impaired his right to effective assistance of counsel
during the pretrial and jury voir dire by failing to use the
ballistics evidence underlying his Brady claim. The second
memorandum and order subsequently dismissed both remaining claims

                                 -5-
     Pippin now asks this court to grant a COA and raises several

grounds already rejected by the district court for relief: (1)

Pippin was deprived of due process of law because the prosecutor

allegedly withheld material evidence concerning the ballistics

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),

because the trial court failed to instruct the jury on the lesser

included offense of felony murder, and because a juror was

purportedly inattentive during his criminal trial; (2) Pippin’s

trial counsel rendered ineffective assistance by failing to

adequately examine the ballistics evidence; (3) the trial court

denied Pippin’s constitutional right to confront adverse

witnesses under the Sixth Amendment by admitting the dying

declaration of Elmer Buitrago; and (4) the district court erred

in refusing to allow Pippin the opportunity to depose the

prosecutor Julian Ramirez.

                           II.   DISCUSSION

A.   Standard of Review

     Pippin’s claim is governed by the Antiterrorism and

Effective Death Penalty Act (AEDPA) because he filed his original

federal habeas petition under § 2254 on June 21, 2002, after the

AEDPA’s April 24, 1996 effective date.        See Fisher v. Johnson,

174 F.3d 710, 711 (5th Cir. 1999) (citing Lindh v. Murphy, 521

U.S. 320, 326 (1997)).    Under the AEDPA, a state habeas



on summary judgment.

                                  -6-
petitioner may appeal a district court’s dismissal of his

petition only if the district court or the court of appeals first

issues a COA.   28 U.S.C. § 2253(c)(1) (2004); Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003) (describing a COA as a

“jurisdictional prerequisite” without which “federal courts of

appeals lack jurisdiction to rule on the merits of appeals from

habeas petitioners”); Neville v. Dretke, 423 F.3d 474, 478 (5th

Cir. 2005).   In determining whether to grant a petitioner’s

request for a COA, the Supreme Court has instructed that a “court

of appeals should limit its examination to a threshold inquiry

into the underlying merit of his claims.”       Miller-El, 537 U.S. at

327 (citing Slack v. McDaniel, 529 U.S. 473, 481 (2000)).      “This

threshold inquiry does not require full consideration of the

factual or legal bases adduced in support of the claims.      In

fact, the statute forbids it.”    Id. at 336.

     A COA will be granted “only if the applicant has made a

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

U.S.C. § 2253(c)(2) (2004).   In order to meet this standard,

Pippin must demonstrate 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, 537

U.S. at 327 (citing Slack, 529 U.S. at 484).      “The COA

determination under § 2253(c) requires an overview of the claims

in the habeas petition and a general assessment of their merits.”

                                 -7-
Id. at 336.   Although the issuance of a COA “must not be pro

forma or a matter of course,” the petitioner satisfies the burden

under § 2253(c) by “demonstrat[ing] that reasonable jurists would

find the district court’s assessment of the constitutional claims

debatable or wrong.”   Id. at 337-38.   “[A] claim can be debatable

even though every jurist of reason might agree, after the COA has

been granted and the case has received full consideration, that

petitioner will not prevail.”    Id. at 338.   Finally, any doubt as

to whether a COA should issue in a death-penalty case must be

resolved in favor of the petitioner.    Medellin v. Dretke, 371

F.3d 270, 275 (5th Cir. 2004) (per curiam); Newton v. Dretke, 371

F.3d 250, 254 (5th Cir. 2004).

     In determining whether the district court’s denial of

Pippin’s petition was debatable, we must keep in mind the

deferential standard of review that the AEDPA requires a district

court to apply when considering a petition for habeas relief.

See Brown v. Dretke, 419 F.3d 365, 371 (5th Cir. 2005) (“With

respect to the review of factual findings, AEDPA significantly

restricts the scope of federal habeas review.”); see also Miniel

v. Cockrell, 339 F.3d 331, 336 (5th Cir. 2003).     Under the AEDPA,

a federal court is not to grant a writ of habeas corpus “with

respect to any claim that was adjudicated on the merits in State

court proceedings” unless it determines that the state court’s

adjudication “resulted in a decision that was contrary to, or


                                 -8-
involved an unreasonable application of, clearly established

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

States.”   28 U.S.C. § 2254(d)(1).     A state court’s decision is

contrary to Supreme Court precedent if: (1) “the state court

arrives at a conclusion opposite to that reached by [the Supreme

Court] on a question of law”; or (2) “the state court confronts

facts that are materially indistinguishable from a relevant

Supreme Court precedent and arrives at a result opposite to [that

of the Supreme Court].”    Williams v. Taylor, 529 U.S. 362, 405

(2000) (opinion of O’Connor, J.) (interpreting the statutory

language “contrary to, or involved an unreasonable application

of”).   “A state court’s decision is an unreasonable application

of clearly established federal law whenever the state court

identifies the correct governing legal principle from the Supreme

Court's decisions but applies that principle to the facts of the

prisoner's case in an objectively unreasonable manner.”      Young v.

Dretke, 356 F.3d 616, 623 (5th Cir. 2004) (internal quotation

marks omitted); accord Williams, 529 U.S. at 409.      “An

unreasonable application may also occur if ‘the state court

either unreasonably extends a legal principle from [Supreme

Court] precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply.’”   Young, 356 F.3d at 623 (alteration in

original) (quoting Williams, 529 U.S. at 407).



                                 -9-
     “[A] determination of a factual issue made by a State court

shall be presumed to be correct” unless the petitioner rebuts the

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

§ 2254(e)(1).    This presumption of correctness attaches not only

to explicit findings of fact, but also to “unarticulated findings

which are necessary to the state court’s conclusions of mixed law

and fact.”     Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir.

2003) (quoting Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th

Cir. 2001)).    A writ of habeas corpus may issue if the state

court’s adjudication of a claim “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)(2).

B.   Due Process Claims

     1.   The Brady Claim

     Pippin asserts that his constitutional rights were violated

by the prosecutor’s alleged suppression of exculpatory evidence

in violation of Brady v. Maryland, 373 U.S. 83 (1963).     These

allegations of prosecutorial misconduct involve the disputed

contents of the state’s ballistics report in this case.    At

trial, Houston Police firearms examiner Charles Anderson

testified about two sets of bullets; one set was recovered from

Elmer Buitrago’s body and one set from Fabio Buitrago’s body.      In

addition, Anderson testified about cartridge cases recovered from


                                 -10-
the crime scene.   Anderson testified that the cartridge cases

were all fired from the same gun.      He also testified that two of

the bullets found in the body of Fabio Buitrago were fired from

the gun that fired one of the two bullets found in the body of

Elmer Buitrago.    During its case-in-chief, the defense recalled

Anderson, who then testified that two of the bullets recovered

from Elmer Buitrago came from different guns.     Anderson explained

that this fact was not clearly stated in his report, but that he

had discussed this discrepancy with the prosecutor before he

testified.

     Anderson’s affidavit stated that the defense ballistics

expert Floyd McDonald had access to and examined the bullet

fragments before trial.   Both experts concluded that the bullets

were fired by two separate guns.    The prosecutor Julian Ramirez

has consistently asserted that he employed an open-file policy

with the defense during the course of this trial and relied upon

the same written ballistics reports that were provided to the

defense counsel, which did not clearly disclose the involvement

of a second gun.

     Pippin now contends that the prosecutor withheld this

information from the defense.   Thus, Pippin asserts that this

court should issue a COA because the district court’s resolution

of his Brady claim was debatable among jurists of reason.      The

Texas Court of Criminal Appeals held that Pippin failed to


                                -11-
establish the materiality of the evidence that two guns were

involved.   In resolving this claim of error, the court observed

that “failure to disclose evidence favorable to the defendant is

constitutional error only if there is a reasonable probability

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

of the proceeding would have been different.”   Pippin v. State,

No. 72,252, slip op. at 21 (citing United States v. Bagley, 473

U.S. 667, 682 (1985)).   The court reasoned that (1) defense

counsel had learned about the evidence in time to cross-examine

Anderson and (2) the jury had Elmer Buitrago’s eyewitness

statement identifying Pippin as the shooter.    Id. at 21-22.

Therefore, the court found that Pippin had failed to demonstrate

a “reasonable probability” that the result of the proceeding

would have been different to support his Brady claim.

     Although finding the facts somewhat unclear, the district

court correctly focused on the state court’s resolution of the

alleged Brady violation to determine whether it was contrary to,

or involved an unreasonable application of, clearly established

federal law.   In examining the state court’s findings, the

district court noted that while Anderson’s ballistics report

fails to explicitly mention the possibility of a second gun, the

prosecution’s theory that Pippin was responsible for both deaths

does not necessarily conflict with the available evidence from




                               -12-
the ballistics report.7   According to the district court, the

report did clearly state that Anderson could not identify two of

the bullets (designated EB-3 and EB-4) from Fabio Buitrago’s

body.    The report also affirmatively indicated, however, that

bullets EB-1 and EB-2 recovered from Fabio Buitrago’s body were

fired from the same gun as one of the two bullets recovered from

Elmer Buitrago’s body.

     To establish a Brady claim, the petitioner must demonstrate:

(1) the prosecutor suppressed evidence, (2) favorable to the

defense, and (3) material to guilt or punishment.    Brady, 373

U.S. at 87; Miller v. Dretke, 404 F.3d 908 (5th Cir. 2005).       The

suppressed evidence is 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); see also Kyles v.

Whitley, 514 U.S. 419, 437 (1995) ([T]he prosecution, which alone

can know what is undisclosed, must be assigned the consequent

responsibility to gauge the likely new effect of all such

evidence and make disclosure when the point of ‘reasonable


     7
          A claim that is largely speculative with respect to the
effect of the allegedly exculpatory evidence on the jury’s
ultimate determination of guilt or innocence cannot support a
Brady violation. See Medellin v. Dretke, 371 F.3d 270, 281 (5th
Cir. 2004) (declining to issue a COA where the Brady claim
depended upon a “substantial degree of speculation”); Hughes v.
Johnson, 191 F.3d 607, 630 (5th Cir. 1999) (denying an
evidentiary hearing to investigate a “purely speculative” Brady
claim underlying the petitioner’s request for a COA).

                                -13-
probability’ is reached.”).   Pippin contends that the fact that

the defense had a separate ballistics expert does not obviate the

state’s affirmative obligation to disclose material exculpatory

evidence under Brady.   The state argues, however, that the

evidence that two guns had been used to shoot Elmer Buitrago was

equally available to defense expert Floyd McDonald.   See Rector

v. Johnson, 120 F.3d 551, 558-59 (5th Cir. 1997) (“The State has

no obligation to point the defense toward potentially exculpatory

evidence when that evidence is either in the possession of the

defendant or can be discovered by exercising due diligence.”).

Moreover, the state maintains that Pippin’s arguments more

accurately question the competence of his own expert witness,

rather than demonstrate any negligent or intentional withholding

of evidence on the part of the prosecution.

     Because the defense ballistics expert Floyd McDonald had

full access to the ballistics evidence and an opportunity to

conduct his own tests before trial, we conclude that the district

court’s resolution of Pippin’s Brady claim is not debatable among

jurists of reason.   As the district court pointed out,

notwithstanding the confusion in Anderson’s report, the record

does not show that the prosecution actually withheld any

exculpatory evidence from the defense during the trial to satisfy

the first prong of the Brady inquiry.   See United States v.

Agurs, 427 U.S. 97, 109 (1976) (noting that “there is ‘no

constitutional requirement that the prosecution make a complete

                               -14-
and detailed accounting to the defense of all police

investigatory work on a case’”) (quoting Moore v. Illinois, 408

U.S. 786, 795 (1972)).    Although the district court acknowledged

that due process is offended when the prosecution withholds

exculpatory evidence, the state “bears no responsibility to

direct the defense toward potentially exculpatory evidence that

either is in the possession of the defense or can be discovered

through the exercise of reasonable diligence.”     Bigby v. Dretke,

402 F.3d 551, 574-75 (5th Cir. 2005) (citing Rector, 120 F.3d at

558-59 (5th Cir. 1997)); see also Kutzner v. Cockrell, 303 F.3d

333, 336 (5th Cir. 2002) (explaining that “defendant must bear

the responsibility of failing to conduct a diligent

investigation” when the exculpatory evidence is available to both

defense and prosecution); United States v. Marrero, 904 F.2d 251,

261 (5th Cir. 1990) (noting that Brady “does not place any burden

upon the Government to conduct a defendant’s investigation or

assist in the presentation of the defense’s case”); United States

v. Brown, 628 F.2d 471, 473 (5th Cir. 1980) (“[W]hen information

is fully available to a defendant at the time of trial and his

only reason for not obtaining and presenting the evidence to the

Court is his lack of reasonable diligence, the defendant has no

Brady claim.”).    Indeed, the district court concluded that

Pippin’s own expert Floyd McDonald was provided sufficient

opportunity to independently examine the ballistics evidence

before trial.     Thus, we decline to issue a COA on this ground.

                                 -15-
     2.   The Jury Instruction Claim

     Pippin next argues that he was denied due process by the

trial court’s refusal to instruct the jury on the lesser included

offense of felony murder.   Specifically, Pippin contends that his

own testimony at trial provided a basis for the jury to

rationally find him guilty only of felony murder, rather than

capital murder.   He maintains that the district court’s

conclusion on the propriety of his jury instruction is debatable

among reasonable jurists and accordingly asks this court to issue

a COA on this ground.

     The Texas Court of Criminal Appeals found no due process

violation in the trial court’s jury instruction.   Due process

requires that a defendant receive a charge on a lesser-included

offense if: (1) the lesser offense is included within the proof

necessary to establish the offense charged, and (2) there exists

some evidence in the record that would permit a jury rationally

to find, if the defendant is guilty, he is guilty only of the

lesser offense. Pippin v. State, No. 72,252, slip op. at 25

(citing Wolfe v. State, 917 S.W.2d 270, 278 (Tex. Crim. App.

1996)).   Although the court acknowledged that felony murder is a

lesser included offense of capital murder under the first prong

of the analysis, the court held that there was no due process

violation because Pippin had received a jury charge that

incorporated the lesser-included offenses of aggravated



                               -16-
kidnapping and kidnapping.

     In reaching its conclusion, the state court focused on

Pippin’s testimony at trial that he was involved only in the

abduction and confinement for several days of the victims.

Throughout his trial, Pippin steadfastly maintained that he

played absolutely no role in the actual killings.      The court

concluded that the actions he admitted to at trial “d[id] not

constitute the commission or attempted commission of an ‘act

clearly dangerous to human life that cause[d] the death’ of one

or both of the victims.”     Id. at 27 (quoting TEX. PENAL CODE

§ 19.02(a)(3)).   Therefore, the court found no error in trial

court’s decision to provide the lesser-included offenses of

aggravated kidnapping and kidnapping, rather than felony murder,

in the jury instructions.

     Following the same reasoning, the district court determined

that the state court’s ruling was not contrary to, or an

unreasonable application of, clearly established federal law.

Due process requires a jury charge on a lesser included offense

“when the evidence unquestionably establishes that the defendant

is guilty of a serious, violent offense–-but leaves some doubt

with respect to an element that would justify conviction of a

capital offense . . . .”     Beck v. Alabama, 447 U.S. 625, 637

(1980).   A lesser included offense charge serves to protect the

jury (and, by extension, the criminal defendant) from the false

dichotomy of choosing between convicting on the capital charges

                                 -17-
or outright acquittal when a “third option” of a lesser included

offense exists.    Id.   As the district court correctly noted,

however, because the jury in Pippin’s case was instructed on the

lesser included offense of aggravated kidnapping, the due process

concerns at the heart of Beck were not implicated.

     The district court found that the state court’s conclusion

that this jury instruction did not run afoul of the “fundamental

concern in Beck” was not contrary to, nor an unreasonable

application of, clearly established federal law.     Schad v.

Arizona, 501 U.S. 624, 646 (1991) (clarifying the requirements of

Beck to provide an alternative lesser included offense, but not

necessarily all conceivable ones, in the jury charge to comport

with due process); Livingston v. Johnson, 107 F.3d 297, 313 (5th

Cir. 1997) (declining to issue a COA where the trial court did

not need to provide a “wider menu of jury instructions” under

Beck and Schad).   Therefore, Pippin has not made a substantial

showing of the denial of a constitutional right that would merit

the issuance of a COA under § 2253(c)(2).    In light of the

clarifying language in Schad, we conclude that jurists of reason

could not debate the district court’s resolution of this claim

and deny Pippin’s request for a COA on this issue as well.

     3.   The Inattentive Juror Claim

     Pippin argues that the presence of an inattentive juror

during his criminal trial violated his constitutional right to



                                 -18-
due process.   More specifically, Pippin raised a claim in his

state habeas application that a member of the jury was reading a

book during part of his defense counsel’s presentation.    Pippin

relied upon the single uncorroborated affidavit of his brother-

in-law Michael L. Martin to support this claim.   During the state

habeas proceedings, both Pippin’s attorneys and the prosecutor

submitted sworn statements flatly rejecting this observation and

noting that the small size of the courtroom would have made it

impossible for such behavior to escape notice.    In weighing the

credibility of the affiants, the state habeas court found no due

process violation for the allegedly inattentive juror.    When

Pippin raised the same claim in his federal habeas petition, the

district court concluded that Martin’s affidavit was insufficient

to rebut the presumption of correctness afforded to the state

habeas court’s factual finding under § 2254(e)(1).    See 28 U.S.C.

§ 2254(e)(1) (providing that “a factual issue made by a State

court shall be presumed to be correct” and that “[t]he applicant

shall have the burden of rebutting the presumption of correctness

by clear and convincing evidence”).

     In light of the deferential standard under § 2254(e)(1),

reasonable jurists could not debate the district court’s

conclusion that the state habeas court’s determination was not

contrary to, or an unreasonable application of, clearly

established federal law.   A trial court’s credibility

determinations made on the basis of conflicting evidence are

                               -19-
entitled to a strong presumption of correctness and are

“virtually unreviewable” by the federal courts.     Moore v.

Johnson, 194 F.3d 586, 605 (5th Cir. 1999) (citing Marshall v.

Lonberger, 459 U.S. 422, 432 (1983)).    Therefore, the district

court correctly deferred to the state court’s reasonable weighing

of this conflicting evidence.    We decline to issue a COA on this

claim.

C.   Ineffective Assistance of Counsel Claim

     Pippin’s claim of ineffective assistance of counsel is

closely related to his Brady claim.     Specifically, Pippin argues

that the state’s failure to disclose evidence that two guns had

been used to shoot the victim rendered his counsel unable: (1) to

effectively conduct voir dire; (2) to elicit a timely confession

from Aaron Loweth, who participated in the kidnappings and

allegedly boasted to acquaintances after the killings that he had

“popped” someone; (3) to effectively impeach Abraham Pacheco’s

testimony; and (4) to negotiate a plea agreement to a lesser

offense.    Beyond reiterating its arguments with respect to the

Brady claim, the state maintains that the strategic trial

decisions of Pippin’s attorneys in dealing with the testimony of

Loweth and Pacheco cannot support an ineffective assistance

claim.8    The state also disputes that the evidence of a second

     8
          With respect to Loweth’s testimony, the state questions
whether the existence of a second weapon would have exculpated
Pippin in any manner. Loweth testified that Pippin instructed
him to dispose of the murder weapon following the shootings, and

                                -20-
gun would have placed Pippin in a better pretrial bargaining

position.

     Looking to the state habeas court’s reasoning, the district

court rejected Pippin’s claim of ineffective assistance of

counsel on two separate grounds.   First, the district court

agreed with the state habeas court’s finding that the claims were

procedurally defaulted.   See Sayre v. Anderson, 238 F.3d 631, 634

(5th Cir. 2001) (“When a state court declines to hear a

prisoner’s federal claims because the prisoner failed to fulfill

a state procedural requirement, federal habeas is generally

barred if the state procedural rule is independent and adequate

to support the judgment.”).   Specifically, the state habeas court

found that Pippin’s claims were not properly before the court

because they were first presented in his pro se state habeas

application, even though his counsel subsequently incorporated

them into a supplemental application.   Under Texas law, state

habeas petitioners are not entitled to hybrid representation.

Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. 1981)

(holding that a defendant is not entitled to hybrid

representation).   The district court recognized that the state


it is difficult to comprehend how a second gun would have shifted
blame away from Pippin or harmed the state’s case in any material
way. Moreover, as the district court noted, Pippin was not
convicted of the homicide about which Loweth boasted to his
girlfriend. Therefore, in accordance with the state habeas
court’s decision, the district court concluded that the decision
to avoid placing this information before the jury was a valid and
reasonable trial strategy entitled to deference.

                               -21-
habeas court considered the merits of the ineffective assistance

of counsel claim only in the alternative.    The district court

held that the state habeas court’s finding was not contrary to,

or an unreasonable application of, clearly established federal

law.    Because reasonable jurists could not debate the district

court’s conclusion in this regard, we will not issue a COA for

ineffective assistance of counsel in this case.

       Although finding the claims procedurally defaulted, the

district court nonetheless examined the state habeas court’s

treatment of Pippin’s various claims of ineffective assistance of

counsel under the familiar test established in Strickland v.

Washington, 466 U.S. 668 (1984), and found that the state court’s

alternative conclusion that Pippin had not established a Sixth

Amendment violation was not contrary to, or an unreasonable

application of, clearly established federal law.    Although the

district court’s conclusion is not, in our view, debatable among

jurists of reason, we pretermit any discussion of it in view of

the adequacy of the procedural default determination.

       We decline to issue a COA on Pippin’s ineffective assistance

of counsel claims.

D.     Sixth Amendment Confrontation Claim

       Pippin argues that the admission into evidence of Elmer

Buitrago’s dying declaration to Officer Parodi before the

ambulance arrived identifying Pippin as the shooter violated



                                -22-
Pippin’s right to confront his accuser under the Sixth Amendment.

Again, Pippin attempted to raise this claim for the first time in

his pro se state habeas application, which was dismissed as an

abuse of the writ.   Ex parte Pippin, Nos. 50,613-01, -02, -03.

Following the reasoning provided in the state habeas court’s

decision, the district court accordingly found the claim to be

procedurally defaulted.

     Even if not procedurally defaulted, the district court’s

habeas review did not show that the state court’s findings were

contrary to, or involved an unreasonable application of, clearly

established federal law.   In fact, the district court noted that

dying declarations and excited utterances are well-established

exceptions to the hearsay rule and are admissible in evidence.9

See FED. R. EVID. 803(2), 804(b)(2).   Contrary to Pippin’s

argument, the district court’s review of the trial testimony of

Officer Parodi clearly demonstrated that the factual predicate

for the dying declaration exception to the hearsay rule had been

established.10   Pippin has offered nothing beyond a cursory

     9
        The Texas Court of Criminal Appeals relied exclusively
upon the excited utterance exception to the hearsay rule and did
not consider Pippin’s argument with respect to the dying
declaration exception. Pippin v. State, No. 72,252, slip op. at
14.
     10
        In order to be admissible under the dying declaration
exception, the statement must be made while the declarant is
conscious of impending death and believes he has no hope of
recovery. Herrera v. Collins, 904 F.2d 944, 949 n.5 (5th Cir.
1990). Pippin does not argue that Elmer Buitrago was unaware of
his impending death when he identified Pippin as the shooter.

                                -23-
historical survey of the Confrontation Clause to suggest that we

should transform a matter of state evidentiary law into a federal

constitutional issue worthy of additional review.     See Herrera,

904 F.2d at 949 (finding no error in the admission of dying

declaration testimony and noting that “this Circuit resists

challenges to evidentiary matters by collateral habeas corpus

review”).    We conclude that reasonable jurists could not debate

the district court’s resolutions of this claim and accordingly

deny Pippin’s request for a COA.

E.   Denial of Right to Depose the Prosecutor Claim

     Finally, the issue of whether the district court should have

allowed Pippin to take a particular deposition does not raise any

constitutional issues--indeed, Pippin does not even argue that it

does--and it is not, therefore, the proper subject of an

application for a COA.   Since we have concluded that a COA will

not issue as to any of Pippin’s constitutional claims, we have no

jurisdiction to consider the deposition matter.     See 28 U.S.C.

§ 2253(c).

                          III.   CONCLUSION

     Because Pippin has not shown that reasonable jurists could

debate the district court’s resolution of his various

constitutional claims, we DENY Pippin’s application for a COA.



Instead, he relies on an exceptionally broad construction of the
Sixth Amendment’s Confrontation Clause protections that has no
basis in the Supreme Court’s law or this circuit’s precedent.

                                 -24-
