                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                             No. 02-40985


                        RICKEY LYNN LEWIS,

                                              Petitioner-Appellant,

                                versus

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

                                               Respondent-Appellee.


          Appeal from the United States District Court
                for the Eastern District of Texas
                          (5:01-CV-105)

                           January 22, 2003

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Federal habeas relief was denied Texas state prisoner Rickey

Lynn Lewis concerning a capital murder conviction for which the

death sentence was imposed.     The district court certified one of

numerous requested issues for appeal (COA):      whether Lewis was

excused, on grounds of futility, from exhausting state remedies on

his ex post facto claim.   (The Texas Court of Criminal Appeals had

ruled on a similar issue eight years before Lewis’ direct appeal.)




     *Pursuant to 5th Cir. 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opinion should not be published and is not precedent except under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.
     In addition, Lewis seeks a COA from this court for each of the

following six claims:           (1) the trial court violated his Sixth

Amendment   Confrontation        Clause       right   by   not    allowing     cross-

examination    of    the    murder    victim’s         fiancé     concerning      her

remarriage; (2) & (3) Texas Code of Criminal Procedure, Art.

37.071, § 3(e) unconstitutionally shifts the burden of proof for

mitigating evidence, as well as permits “open-ended discretion” to

the jury, violative of Furman v. Georgia, 408 U.S. 238                  (1972); (4)

& (5) counsel was ineffective for failing both to make a Fourteenth

Amendment Equal Protection objection (where psychological testimony

supporting future dangerousness was based, in part, on Lewis’

gender) and to present mitigating evidence of Lewis’ past head

injury from a gunshot wound; and (6) the trial court erred by

failing to include an “anti-parties” instruction in its charge to

the jury on punishment.

     Each COA request is DENIED; the denial of habeas relief is

AFFIRMED.

                                       I.

     The following facts are based on those stated in Lewis v.

Texas,   No.   71,887,     at   3-6   (Tex.      Crim.     App.    23   June    1999)

(unpublished).      In the early morning of 17 September 1990, after

walking into the bathroom, Connie Hilton noticed an armed man walk

past the doorway; immediately screamed to her sleeping fiancé (the

victim); and heard a gunshot.


                                          2
     After Hilton attempted to hide in the bathroom, a man aimed a

gun at her, saying, “Shut up bitch, or I’ll shoot you, too”.

Hilton began struggling with that man; was struck in the head at

least twice; finally submitted; and was lifted by two individuals,

who told her to cover her eyes.

     Hilton was led outside and later directed into the living

room, where she was sexually assaulted by the man who found her in

the bathroom.       That man took Hilton into the kitchen, where he tied

her hands and feet; she heard sounds indicating the house was being

ransacked.    Finally, Hilton felt a gun barrel placed between her

legs,   and   the    same   man   told   her:   “Quit   whimpering,   bitch.

Somebody will find you in the morning”.

     Hilton testified that, because of the voice, she knew it was

the man who remained with her from when she was discovered in the

bathroom until when she was left in the kitchen.

     During a search of the room where the sexual assault occurred,

investigators collected pubic hairs that were consistent with

samples taken from Lewis.         Through DNA analysis, samples of Lewis’

blood were matched with traces of blood found both in the house and

in the victim’s car (recovered the next morning) and also with

semen recovered from the house and Hilton.

     In 1994, a jury convicted Lewis of capital murder of Hilton's

fiancé in the course of committing, or attempting to commit, the

aggravated sexual assault of Hilton.            The jury imposed the death

penalty.

                                         3
      In 1996, the Texas Court of Criminal Appeals remanded for a

new   punishment        hearing,     pursuant    to    Texas   Code    of    Criminal

Procedure, Art. 44.29(c) (if death sentence set aside for error

only in punishment phase, court shall not set aside conviction but

commence new punishment hearing). (That provision became effective

1 September 1991, approximately one year after the murder.)                       Lewis

v. Texas, No. 71,887 (Tex. Crim. App. 19 June 1996) (unpublished).

      In 1997, on remand, Lewis was again sentenced to death.                      The

Court of Criminal Appeals affirmed the conviction and sentence.

Lewis    v.    Texas,    No.   71,887    (Tex.    Crim.    App.   23    June      1999)

(unpublished).          Lewis did not seek review by the United States

Supreme Court.

      In January 1999, Lewis sought habeas relief in the Texas trial

court.        Pursuant    to   its   findings    and    conclusions,        the   court

recommended relief be denied. Ex Parte Lewis, No. 1-91-32-A (241st

Dist., Smith County, Tex. 28 Feb. 2000) (unpublished).                      The Court

of Criminal Appeals adopted the findings and conclusions. Ex Parte

Lewis, No. 44,725-01 (Tex. Crim. App. 19 April 2000).

      Lewis sought federal habeas relief in April 2001.                           In a

summary judgment proceeding, the magistrate judge's recommendations

were adopted by the district court and habeas relief was denied

(June 2002).




                                          4
     The district court granted a COA on whether Lewis was excused

from exhausting state remedies for his ex post facto claim.              A COA

was denied on all other requested issues.

                                    II.

     As discussed below, it was not futile for Lewis, in state

court, to raise the ex post facto claim; therefore, he is not

excused from exhausting state remedies.          A COA is refused on all

other issues presented, because Lewis has not shown reasonable

jurists would find the district court’s rulings debatable or wrong.

     A summary judgment in a habeas proceeding is reviewed de novo.

Woods v. Cockrell, 307 F.3d 353, 356-57 (5th Cir. 2002).           Review is

through the heightened standards of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA).         All state findings of fact are

considered correct, absent clear and convincing evidence otherwise.

Id. at 357; 28 U.S.C. 2254(e)(1).

     To appeal the denial of habeas relief, Lewis must first obtain

a COA; he must make “a substantial showing of the denial of a

constitutional right”.     28 U.S.C. § 2253(c)(2).      “Where a district

court has rejected the constitutional claims on the merits, the

showing required to satisfy § 2253(c) [and obtain a COA] is

straightforward:    The petitioner must demonstrate that reasonable

jurists   would    find   the   district    court's   assessment    of    the

constitutional claims debatable or wrong.”         Slack v. McDaniel, 529

U.S. 473, 484 (2000).


                                     5
     In general, if an issue is certified for appeal, relief is not

granted unless the state court proceeding resulted in:                        (1) “a

decision    that    was    contrary    to,    or    involved     an    unreasonable

application of, clearly established Federal law as determined by

the Supreme Court of the United States”, 28 U.S.C. 2254(d)(1); or

(2) “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). In determining what constitutes

an   “unreasonable        application”       of    law   under     §   2254(d)(1),

“‘unreasonable’ does not mean merely ‘incorrect’:                  an application

of clearly established Supreme Court precedent must be incorrect

and unreasonable to warrant federal habeas relief”.                         Foster v.

Johnson, 293 F.3d 766, 776 (5th Cir.)(emphasis in original) (citing

Williams v. Taylor, 529 U.S. 362, 410-12 (2000)), cert. denied sub

nom. Foster v. Epps, 123 S. Ct. 625 (2002).

                                        A.

     The    issue   certified    for     appeal     is   the   district       court's

exhaustion-bar for Lewis' ex post facto claim.                    That ruling is

reviewed de novo.         Fisher v. Texas, 169 F.3d 295, 299 (5th Cir.

1999).     Needless to say, because the ex post facto claim was not

raised in state court, there is no state court ruling to which the

above-discussed     AEDPA    “unreasonable”        standard      can   be    applied.

Hence, the exhaustion-bar ruling is reviewed de novo.




                                         6
       Lewis claims the Court of Criminal Appeals violated the Ex

Post Facto Clause, U.S. CONST. art. I, § 10, cl.1, when it applied

Texas Code of Criminal Procedure, Art. 44.29(c) to remand his case

for a new hearing on punishment only.                Article 44.29(c) provides:

               If any court sets aside or invalidates the
               sentence of a defendant convicted of an
               offense under Section 19.03, Penal Code, and
               sentenced to death on the basis of any error
               affecting punishment only, the court shall not
               set the conviction aside but rather shall
               commence a new punishment.

As noted, this provision took effect in September 1991.

       Prior    to    that   effective    date,      a   capital   case   in   which

reversible error occurred only in the sentencing phase would have

been   remanded       for    a   new   trial   on    both   guilt-innocence       and

punishment.          Lewis asserts that, because the murder at issue

occurred before the 1991 effective date, application of the new

Article 44.29(c) violates the Ex Post Facto Clause.

       The district court ruled Lewis did not exhaust his state law

remedies by first presenting this issue to the Texas courts.                      The

district court held Lewis was, therefore, procedurally barred from

raising it in federal court.

       Lewis    contends     the   exhaustion       requirement    is   excused    as

futile.    He states that, in Grimes v. State, 807 S.W.2d 582 (Tex.

Crim. App. 1991) (en banc), the Court of Criminal Appeals had

already decided the ex post facto issue adversely to his position

urged here.       The State counters that, although it is unclear the


                                          7
futility exception exists post-AEDPA, the exception would not apply

here because Lewis must still raise the issue in state court, even

if it would not be sympathetic.

     Federal habeas relief will not be granted unless:                           “the

applicant has exhausted the remedies available in the courts of the

State”,   28     U.S.C.   §   2254(b)(1)(A);     “there    is   an     absence     of

available State corrective process; or circumstances exist that

render    such    process     ineffective   to    protect       the     rights    of

applicant”, 28 U.S.C. § 2254(b)(1)(B). The principles of finality,

comity, and federalism require a federal habeas petitioner to first

provide the state court a full and fair opportunity to consider

federal law challenges.         Duncan v. Walker, 533 U.S. 167, 178-79

(2001).     “The     exhaustion    requirement     is     satisfied      when    the

substance of the federal habeas claim has been fairly presented to

the highest state court.”        Whitehead v. Johnson, 157 F.3d 384, 387

(5th Cir. 1998).

     Our court has questioned whether the futility exception, which

existed pre-AEDPA, exists post-enactment. Nonetheless, courts have

recognized AEDPA’s statutory language implies the exception is

viable and have continued to apply it.            Jones v. Jones, 163 F.3d

285, 298 (5th Cir. 1998) (“Our court has not addressed whether the

futility exception ... survived AEDPA’s enactment.                    But, ... the

language of § 2254(b)(1)(B) is substantially identical to the

language of pre-AEDPA § 2254(b), upon which the ... exception


                                      8
appears to be based.”), cert. denied, 528 U.S. 895 (1999).        See

Fisher, 169 F.3d at 303 (applying exception).        For purposes of

deciding this appeal, we need not address this question.      We will

assume it exists.

     The exception is quite limited, applying only “when ... the

highest state court has recently decided the same legal question

adversely to the petitioner”.     Id. (emphasis added).     But, “the

likelihood of failure of a claim in state court is no excuse for

not presenting it there”.     Beazley v. Johnson, 242 F.3d 248, 269

(5th Cir.) (emphasis in original) (citing Engle v. Isaac, 456 U.S.

107, 130 (1982) (“If a defendant perceives a constitutional claim

and believes it may find favor in the federal courts, he may not

bypass the state courts simply because he thinks they will be

unsympathetic to the claim. Even a state court that has previously

rejected a constitutional argument may decide, upon reflection,

that the contention is valid.” (second emphasis added))), cert.

denied sub nom. Beazley v. Cockrell, 122 S. Ct. 329 (2001).

     Therefore, to excuse exhaustion, Lewis must show far more than

a likelihood of failure.    He must show:   the state court had a full

and fair opportunity to decide the same issue in a recent case; and

interests of comity and federalism are served by excusing the

failure to exhaust. Lewis claims Fisher and Youngblood v. Lynaugh,

882 F.2d 956 (5th Cir. 1989), rev'd on other grounds sub nom.,



                                  9
Collins v. Youngblood, 497 U.S. 37 (1990), support his prevailing

under the futility exception here.

     Youngblood involved a habeas request on a claimed ex post

facto violation concerning Texas Code of Criminal Procedure, Art.

37.10(b) (requiring reformation of jury verdict where jury assesses

both a punishment authorized by law and a punishment not authorized

by law).   Youngblood did not directly present the issue in state

court.   In federal court, he claimed the futility exception.   Our

court allowed the exception, because, only one week prior to

considering Youngblood’s case, the Court of Criminal Appeals had

decided the same issue in Ex Parte Johnson, 697 S.W. 2d 605 (Tex.

Crim. App. 1985) (en banc).    Further, in affirming Youngblood’s

conviction, the Court of Criminal Appeals explicitly relied on Ex

Parte Johnson when it applied Article 37.10(b).

     Fisher involved the futility exception for failure, in state

court, to raise a Batson claim that religious-based preemptory

strikes violated the Equal Protection Clause.       See Batson v.

Kentucky, 476 U.S. 79 (1986) (Equal Protection Clause forbids

prosecutors from challenging potential jurors on basis of race).

Our court held interests of comity and federalism were best served

by excusing exhaustion, based on the following reasons. First, the

Court of Criminal Appeals decided, en banc, the exact issue in a

separate case one year before Fisher’s appeal to that court.

Second, although Fisher had not raised the issue, the state court


                                10
addressed it (in a footnote), dismissing it as meritless.     Third,

the State failed to raise exhaustion in district court.     Finally,

“because ... Fisher’s claim [was] barred by Teague, judicial

efficiency [made] it appropriate to dispose of [his] claim without

requiring additional litigation”.      Fisher, 169 F.3d at 303.

     In Youngblood and Fisher, the adverse precedent occurred only

one week and one year, respectively, before the appeal involving

the same issue.   On the other hand, Grimes, on which Lewis relies,

was decided eight years before Lewis’ state appeal (1999).        In the

light of this eight-year interval, the earlier quoted admonition in

Engle is particularly appropriate:       “Even a state court that has

previously rejected a constitutional argument may decide, upon

reflection, that the contention is valid”.          456 U.S. at 130

(emphasis added).

     Moreover, the Court of Criminal Appeals has not decided the

same issue Lewis now raises.          In Youngblood, that court had

decided, in a separate case, that the same statute that was

applied to Youngblood did not violate the Ex Post Facto Clause,

which was the same issue for which Youngblood sought habeas relief.

Likewise, in Fisher, that court relied directly on the adverse

precedent in denying relief.      Here, however, Lewis relies on

Grimes, which addressed a different statute for a state ex post

facto claim.



                                 11
     Article 44.29(c) is at issue here; Grimes concerned Article

44.29(b), applicable to non-capital cases.               Grimes held that

article did not violate the Ex Post Facto Clause of the Texas

Constitution (although the Texas court relied on Supreme Court

interpretations of the Ex Post Facto Clause in the United States

Constitution and held Article 44.29(b) violated neither).               Lewis

contends   Article    44.29(c),    applicable   only    to   capital    cases,

violates   the   Ex    Post   Facto    Clause   of     the   United    States

Constitution.

     The language of Articles 44.29(b) and 44.29(c) varies in part.

Article 44.29(b) provides:        “If the court of appeals or the Court

of Criminal Appeals awards a new trial to the defendant only on the

basis of an error made in the punishment stage of the trial, the

cause shall stand as it would have stood in case the new trial had

been granted by the court below, except that the court shall

commence the new trial as if a finding of guilt had been returned

and proceed to the punishment stage of the trial”.                     Article

44.29(c), at issue in this case, provides:             “If any court sets

aside or invalidates the sentence of a defendant convicted of an

offense under Section 19.03, Penal Code, and sentenced to death on

the basis of any error affecting punishment only, the court shall

not set the conviction aside but rather shall commence a new

punishment”.




                                      12
       Although the Court of Criminal Appeals may choose to interpret

these statutes similarly, it does not follow that it must, or even

will, do so.    Consequently, unlike in Youngblood or Fisher, Lewis

has not shown, for the issue he failed to raise in state court,

that the state court either recently decided it or decided the same

one.

       Finally, other considerations do not show federalism and

comity would be served by excusing exhaustion.                 Fisher involved a

failure of the State to raise exhaustion at the district court.

Here, the State did not fail to do so; in fact, the district court

barred Lewis’ claim because of the failure to exhaust.

       Moreover, in Fisher, the claim was Teague-barred; it was

judicially inefficient to send the issue back to state court only

to hear a successive federal habeas petition after exhaustion and

bar the claims then.     Here, the Texas Abuse of Writ Doctrine, Texas

Code of Criminal Procedure, Art. 11.071, § 5, likely bars Lewis

from again filing for state habeas relief. (Texas Code of Criminal

Procedure,     Article   11.071,    §    5     allows    a    subsequent   habeas

application only if:      (1) it could not have been raised in the

previous   application    because       the    factual   or    legal   basis   was

unavailable at the time; or (2) but for a violation of the United

States Constitution, no rational juror would have found Lewis

guilty or would have answered the punishment issues in the State’s

favor. The district court found:             the legal claim was available at


                                        13
the time of Lewis’ original application; and he has presented no

facts    supporting    that,   even   if    there   were    an    ex   post    facto

violation, no rational juror would have found him guilty and

sentenced him to death.)

     Because Lewis has not shown that a state court has decided the

same issue in a recent case and that federalism and comity would be

served by excusing exhaustion, the futility exception (if it even

exists    post-AEDPA     enactment)    does   not    permit      the   failure   to

exhaust.      Lewis’ ex post facto claim is barred.

                                       B.

     Lewis seeks a COA for six other issues.                  As discussed, an

issue will be certified for appeal only if Lewis can make “a

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

U.S.C.    §   2253(c).     Restated,       reasonable      jurists     would   find

debatable or wrong the district court’s resolution of petitioner’s

constitutional claim.       Slack, 529 U.S. at 484.

     Moreover, a COA request is viewed against the backdrop, under

AEDPA, for obtaining habeas relief.                 In that regard, and as

discussed supra, if a COA is granted on a merits issue, a state

court decision on that issue is reviewed only to determine if it

was “contrary to, or involved an unreasonable application of,

clearly established Federal law” or was “based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding”.          28 U.S.C. § 2254(d)(1) & (2).


                                       14
     Of the earlier-listed six issues for which he seeks a COA,

Lewis did not brief four.   Accordingly, those four are considered

abandoned.    E.g., Lookingbill v. Cockrell, 293 F.3d 256, 263 (5th

Cir. 2002).

     Both of the remaining COA requests concern the punishment

phase: (1) whether Texas Code of Criminal Procedure, Art. 37.071,

§ 3(e) unconstitutionally shifts to defendant the burden of proof

on mitigation; and (2) whether the trial court violated Lewis’

Sixth Amendment Confrontation Clause right by refusing his request

to cross-examine the victim’s fiancé concerning her remarriage.

                                 1.

     For the three special issues in the punishment phase, the

third, conforming to Texas Code of Criminal Procedure, 37.0711, §

3(e), stated:

          Taking into consideration all of the evidence,
          including the circumstances of the offense,
          the defendant’s character and background, and
          the personal, moral culpability of the
          Defendant, do you find that there is a
          sufficient    mitigating    circumstance    or
          circumstances to warrant that a sentence of
          life imprisonment rather than a death sentence
          be imposed?

The jury was further instructed: “The burden of proof with respect

to Special Issues 1 and 2, in this phase of the trial, rests upon

the State, and it never shifts to the Defendant”; and “[w]ith

respect to any and all issues in this trial, the law does not

require the defendant to produce evidence at all and the defendant



                                 15
has no burden of proof as to any issue in the trial of this case”.

(Emphasis added.)

     Lewis contends Article 37.0711, § 3(e) is unconstitutional

because it does not require the State to prove, beyond a reasonable

doubt, the absence of mitigating circumstances.        On direct appeal,

the Court of Criminal Appeals rejected this contention, noting

Texas courts have already decided this issue.           E.g., Barnes v.

State, 876 S.W.2d 316, 330 (Tex. Crim. App.) (“Neither this court

nor the Texas legislature has ever assigned a burden of proof on

the issue of mitigating evidence.            The Eighth and Fourteenth

Amendments do not require that a burden be placed on the State.”

(internal citation omitted)), cert. denied, 513 U.S. 861 (1994).

     Lewis now relies on the quite recent decision in Ring v.

Arizona, __ U.S. __, 122 S. Ct. 2428 (2002), which overruled, in

part, Walton v. Arizona, 497 U.S. 639 (1990).           Ring held a jury

must determine any aggravating factors which enhance a sentence,

including   those   in   capital    cases.    Lewis   implies   Ring   also

overruled Walton's holding that shifting to defendant the burden

for mitigation is constitutional.

     Apprendi v. New Jersey, 530 U.S. 466 (2000), established that

the State’s characterization of a circumstance as an element of the

crime or as a sentencing factor does not determine whether a judge

or jury decides the issue.         It follows, according to Lewis, that




                                      16
the State must prove beyond a reasonable doubt the absence of

sufficient mitigating circumstances.

     The State responds:       Ring overruled Walton only to the extent

Walton allowed   a    judge,    not   a      jury,   to   consider   aggravating

factors; Walton’s holding that a State may shift the burden of

proof to defendant on mitigation is still good law; and, in any

event, the jury was properly instructed that the State had the

burden to prove all issues.

     The   district   court     noted     Walton     rejected   Lewis’   burden

shifting argument.    As discussed below, Walton is not overruled on

the issue at hand; as a result, Lewis has not made a substantial

showing that the mitigating evidence special issue denied him his

constitutional rights.

     Walton considered the constitutionality of Arizona’s capital

sentencing scheme, which allowed a judge to consider aggravating

and mitigating factors.        If one aggravating factor were present,

and the mitigating factors were not sufficient, defendant was

sentenced to death.    Walton contended, inter alia:             every finding

of fact for sentencing must be determined by a jury; and the

statute violated the Eighth and Fourteenth Amendments by requiring

defendant to prove mitigating factors.

     The Supreme Court held:          the Constitution did not require a

jury to determine the sentencing factors, 497 U.S. at 647; and




                                        17
shifting the burden to defendant on mitigation did not violate the

Constitution:

            So long as a State’s method of allocating the
            burdens of proof does not lessen the State’s
            burden to prove every element of the offense
            charged, or in this case to prove the
            existence of aggravating circumstances, a
            defendant’s constitutional rights are not
            violated by placing on him the burden of
            proving mitigating circumstances sufficiently
            substantial to call for leniency. ... We
            therefore decline to adopt as a constitutional
            imperative a rule that would require the court
            to consider the mitigating circumstances
            claimed by defendant unless the State negated
            them by a preponderance of the evidence.

Id. at 650 (emphasis added).

     Apprendi established a new constitutional rule:            “Other than

the fact of a prior conviction, any fact that increases the penalty

for a   crime    beyond   the   prescribed    statutory    maximum    must   be

submitted   to   a   jury,   and   proved   beyond   a   reasonable   doubt”.

Apprendi, 530 U.S. at 490.           Apprendi, however, recognized the

distinction between aggravating and mitigating factors:

            Finally, the principal dissent ignores the
            distinction the Court has often recognized
            between facts in aggravation of punishment and
            facts in mitigation. If facts found by a jury
            support a guilty verdict of murder, the judge
            is authorized by that jury verdict to sentence
            the defendant to the maximum sentence provided
            by the murder statute. If the defendant can
            escape the statutory maximum by showing, for
            example, that he is a war veteran, then a
            judge that finds the fact of veteran status is
            neither   exposing    the   defendant   to   a
            deprivation of liberty greater than that
            authorized by the verdict according to
            statute, nor is the judge imposing upon the

                                      18
          defendant   a   greater   stigma   than   that
          accompanying the jury verdict alone. Core
          concerns animating the jury and burden-of-
          proof requirements are thus absent from such a
          scheme.

Id. at 490-91 n.16 (internal citation omitted).

     Post-Apprendi,   Ring   revisited   the   constitutionality   of

Arizona’s capital sentencing scheme; it only overruled Walton on

the issue of whether a judge may find aggravating factors:

          [W]e overrule Walton to the extent that it
          allows a sentencing judge, sitting without a
          jury, to find an aggravating circumstance
          necessary for imposition of the death penalty.
          Because   Arizona’s   enumerated   aggravating
          factors operated as the functional equivalent
          of an element of a greater offense, the Sixth
          Amendment requires that they be found by the
          jury.

Ring, 122 S. Ct. at 2443 (internal quotations and citation omitted;

emphasis added).    Indeed, the Court noted the limited issue on

appeal:   “Ring’s claim is tightly delineated:     He contends only

that the Sixth Amendment required jury findings on the aggravating

circumstances asserted against him.... He makes no Sixth Amendment

claim with respect to mitigating circumstances”.     Id. at 2437 n.4

(emphasis added).   See also United States v. Bernard, 299 F.3d 467,

484 n.14 (recognizing limited nature of Ring’s holding).

                                 2.

     The trial court refused, during the punishment phase, to allow

Lewis’ counsel to cross-examine Hilton, the murder victim’s fiancé,

concerning her remarriage six months after the murder.      Claiming

                                 19
violation of the Confrontation Clause, Lewis asserts:                   cross-

examination on this issue would have ameliorated Hilton's victim-

impact testimony; without the cross-examination, Hilton’s testimony

presented an inaccurate portrayal of the effects the murder had on

her. The State counters: such cross-examination was irrelevant to

Hilton's victim-impact testimony; Lewis had the opportunity to

cross-examine Hilton on other credibility issues concerning the

testimony and did not; and even if cross-examination should have

been allowed, the error was harmless because of the overwhelming

evidence against Lewis.

     Hilton’s victim-impact testimony was:

           [The victim] was my fiancé, so he was
           basically my whole future or a big part of it,
           and he was my best friend. And he and I had
           lived there for over a year, had made a lot of
           plans. The family was close. He just – it
           changed my entire life

                                       ...

           I have physical and emotional [scars].
           Physical that I have to look at every day;
           emotional that bother me when it gets dark. I
           don’t like the dark anymore. It bothers me.

When Lewis’ counsel cross-examined Hilton, he did not address this

testimony.

     Later, Lewis requested cross-examination on the issue of

Hilton’s remarriage, contending the remarriage is probative of

showing   Hilton   was   not   alone    and   her   fear   of   the   dark   was

diminished. The trial court ruled the remarriage irrelevant to the

effect the murder had on Hilton.

                                       20
       The Court of Criminal Appeals upheld that ruling.             It noted

that   Lewis   failed   to   show    why   revealing   the   remarriage   was

necessary and concluded the trial court did not abuse its broad

discretion in limiting cross-examination.

       The district court denied this claim, holding the Court of

Criminal Appeals did not rule contrary to, or unreasonably apply,

federal law when it held no abuse of discretion in limiting

marginally relevant cross-examination.          As discussed below, a COA

is denied because no reasonable jurist would find debatable or

wrong the district court’s determination.

       The Confrontation Clause guarantees a defendant the right “to

be confronted with the witnesses against him”.            U.S. CONST. amend.

VI.    The main purpose is to secure the opportunity to cross-

examine.     Davis v. Alaska, 415 U.S. 308, 315-16 (1976).

       The   Supreme    Court,      however,   has     observed:       “[T]he

Confrontation Clause guarantees an opportunity for effective cross-

examination, not cross-examination that is effective in whatever

way, and to whatever extent, the defense might wish.”              Delaware v.

Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original).

             [T]he Confrontation Clause ... [does not]
             prevent[] a trial judge from imposing any
             limits on defense counsel’s inquiry into the
             potential bias of a prosecution witness. On
             the contrary, trial judges retain wide
             latitude insofar as the Confrontation Clause
             is concerned to impose reasonable limits on
             such cross-examination based on concerns
             about,   among  other   things,  harassment,
             prejudice, confusion of the issues, the

                                      21
           witness’ safety, or interrogation that          is
           repetitive or only marginally relevant.

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (emphasis added).

     As stated, Lewis has not made a substantial showing he was

denied his Confrontation Clause right. Hilton’s remarriage was, at

most, marginally relevant to her victim-impact testimony, including

her fear of the dark and suffering because of her physical scars.

Further,   the   remarriage   was    only   tangentially   related   to

discrediting her testimony that the victim was a big part of her

future and his death changed her entire life.      Finally, Lewis had

the opportunity to cross-examine Hilton on other credibility issues

concerning her victim-impact testimony; he did not do so.

                                III.

     For the foregoing reasons the COA requests are DENIED; the

denial of habeas relief is AFFIRMED.

                                              COA DENIED; AFFIRMED




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