                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


RAYMOND DAYLE ROWSEY,                 
             Petitioner-Appellant,
                 v.
                                                No. 02-16
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
               Respondent-Appellee.
                                      
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
                James A. Beaty, Jr., District Judge.
                          (CA-00-631-1)

                      Argued: January 21, 2003

                      Decided: April 24, 2003

       Before WIDENER, WILKINSON, and NIEMEYER,
                      Circuit Judges.



Affirmed in part and dismissed in part by published opinion. Judge
Wilkinson wrote the opinion, in which Judge Widener and Judge Nie-
meyer joined.


                            COUNSEL

ARGUED: Wayne James Payne, POWELL & PAYNE, Shallotte,
North Carolina; Michael R. Ramos, RAMOS & LEWIS, Shallotte,
North Carolina, for Appellant. Steven Mark Arbogast, Special Deputy
Attorney General, NORTH CAROLINA DEPARTMENT OF JUS-
2                           ROWSEY v. LEE
TICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Roy Coo-
per, Attorney General of North Carolina, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appel-
lee.


                              OPINION

WILKINSON, Circuit Judge:

   Appellant Raymond Dayle Rowsey was convicted by a North Car-
olina jury of first-degree murder on the bases of premeditation and
deliberation and felony murder, as well as robbery with a firearm. He
was sentenced to death for the murder. After exhausting state reme-
dies, Rowsey petitioned the United States District Court for the Mid-
dle District of North Carolina for a writ of habeas corpus under 28
U.S.C. § 2254. The district court denied his petition, and Rowsey now
appeals. We affirm in part and dismiss in part.

                                   I.

   On the evening of March 23, 1992, Rowsey and his half brother,
Raymond Lee Steele, were hanging out at Steele’s house, playing
cards and listening to the radio. Shortly after midnight, the two men
decided to walk to a local Circle K convenience store. They arrived
at the store around 1:00 a.m.

   Once at the store, the men obtained some change from the store
clerk, Howard Rue Sikorski, and played several dollars worth of
video games. Next, they went to the back of the store to look at the
movie display. Rowsey then decided he wanted to buy a snack. Steele
gave Rowsey two dollars and Rowsey picked up two bags of M&M’s
and paid for them at the counter. Rowsey then pulled a gun out of his
coat, pointed it at Sikorski, and clicked the gun without firing it. He
turned and smiled at Steele, telling Steele that he had scared the store
clerk with a water gun.

  The gun, however, was not a water gun. Rowsey turned back
towards the victim and shot him in the face. After the victim fell to
                            ROWSEY v. LEE                              3
the floor, Rowsey leaned over the counter and shot him again.
Rowsey then ran around the counter, fired at least two more shots,
and kicked the victim three or four times in the back of the head.

   Steele ran out of the store and Rowsey ran out after him, still carry-
ing the gun in one hand and something else underneath his arm. Dur-
ing the walk home, Steele asked Rowsey why he shot the victim.
Rowsey said he was initially just playing, but he thought that he saw
the victim reaching underneath the counter for a gun. Rowsey later
told Steele that he kicked the victim to ensure that the victim died. He
also told Steele, however, that the victim was still alive and gasping
for air when Rowsey ran out of the store.

   Back at Steele’s house, Rowsey counted the cash that he had taken
from the Circle K cash register. He told Steele that he had grabbed
the money to make the shooting look like a robbery and to make the
shooting worthwhile. In total, Rowsey took $54.00 in cash and sev-
eral adult magazines from the store. Steele would not accept half of
the money, but did accept a two-dollar bill that had been taken from
the register. He also cleaned the murder weapon for Rowsey and pro-
vided Rowsey with bullets to reload the gun.

   The victim’s body was discovered at approximately 2:00 a.m. on
March 24. An autopsy revealed six gunshot wounds: one to the face,
one to the back of the neck, one to the right side of the head, and three
to the back. The autopsy also revealed several blunt-force injuries to
the victim’s head and neck area.

   Store managers determined that $57.54 in cash and several adult
entertainment magazines were missing from the store. Among the
missing cash was a two-dollar bill. The store had a record of the serial
number of that bill which allowed police to track it. On the afternoon
of March 24, Steele attempted to make a purchase with the marked
two-dollar bill and was arrested shortly thereafter.

  Steele initially made several false statements denying any involve-
ment in the murder, but he eventually admitted that he was present
during the murder. Rowsey was arrested later that day and subse-
quently charged with first-degree murder and armed robbery. Steele
4                           ROWSEY v. LEE
pled guilty to second-degree murder and robbery with a dangerous
weapon in exchange for his testimony at trial.

   At trial, Rowsey tried to finger Steele as the shooter. Rowsey ques-
tioned Steele regarding a letter that Steele had written to Rowsey that
allegedly concluded with the phrase "even though you didn’t do it."
Steele admitted to writing the letter, but denied writing the concluding
line. Rowsey also introduced testimony from two jail inmates who
testified that they overheard conversations between Rowsey and
Steele during which Steele acknowledged that he, not Rowsey, had
killed the victim. The State countered this testimony, however, with
substantial evidence indicating that Rowsey was the shooter. The
State introduced evidence of Rowsey’s shoe prints in the blood
around the victim’s head, and evidence that Rowsey possessed the
murder weapon both before and after the murder. Furthermore, Steele
provided extensive testimony recounting the events of the murder and
bolstering the State’s claim that Rowsey was the shooter.

   Given the weight of the evidence, the jury concluded that Rowsey
was indeed the shooter and convicted him of both first-degree murder
and armed robbery. At sentencing, Rowsey introduced evidence indi-
cating that he had come from a broken home and suffered a difficult
childhood. The State introduced evidence that Rowsey had broken
into a church and stolen $900.00 worth of items only weeks before
the murder. The State also introduced evidence of Rowsey’s prior
criminal record, which included fifteen counts of injury to personal
property in 1990, one count of possession of a malt beverage by a
minor in 1990, and two counts of misdemeanor larceny in 1991.

   The jury returned a recommendation of death. On October 1, 1993,
the trial judge entered judgment and sentenced Rowsey to death. The
Supreme Court of North Carolina affirmed the conviction and sen-
tence, State v. Rowsey, 472 S.E.2d 903 (N.C. 1996), and the United
States Supreme Court denied certiorari, Rowsey v. North Carolina,
519 U.S. 1151 (1997).

   Rowsey then filed a motion for appropriate relief (MAR) in North
Carolina state court. See N.C.G.S. § 15A-1401 (2002). The state
MAR court entered an order directing discovery and denying Rowsey
the right to proceed ex parte for the purpose of seeking a mitigation
                            ROWSEY v. LEE                              5
expert. The state MAR court heard arguments from counsel but did
not hold an evidentiary hearing. By order dated October 14, 1999, the
state court denied Rowsey’s MAR, and the North Carolina Supreme
Court denied certiorari on June 15, 2000.

   Next, Rowsey filed a petition for writ of habeas corpus in the
United States District Court for the Middle District of North Carolina.
A United States magistrate judge reviewed Rowsey’s petition and rec-
ommended dismissal. On February 26, 2002, the district court
adopted the magistrate judge’s recommendation. Rowsey v. Lee, No.
1:00CV631 (M.D.N.C. Feb. 26, 2002). The district court also
declined to issue a certificate of appealability (COA). Id. Rowsey now
appeals.

                                   II.

   "Unless a circuit justice or judge issues a certificate of appeala-
bility, an appeal may not be taken to the court of appeals from [ ] the
final order in a habeas corpus proceeding in which the detention com-
plained of arises out of process issued by a State court." 28 U.S.C.
§ 2253(c)(1)(A) (2003). A COA may issue "only if the applicant has
made a substantial showing of the denial of a constitutional right." Id.

   A court’s determination of a petitioner’s claims is guided by the
principles set forth in the Antiterrorism and Effective Death Penalty
Act (AEDPA), which limits federal review of collateral attacks on
state convictions. Under § 2254(d)(1), federal courts may not grant a
writ of habeas corpus when a state court has already resolved the mer-
its of a claim, unless the state court’s decision was "contrary to, or
involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States." 28
U.S.C. § 2254(d)(1) (2002).

    A state court decision is contrary to clearly established federal law
if the state court "applies a rule that contradicts the governing law set
forth in [the Supreme Court’s] cases." Williams v. Taylor, 529 U.S.
362, 405 (2000). A state court decision is contrary to clearly estab-
lished Supreme Court precedent "if the state court confronts a set of
facts that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a result different from
6                            ROWSEY v. LEE
[that] precedent." Id. at 406. A state court decision involves an unrea-
sonable application of clearly established federal law if it "correctly
identifies the governing legal rule but applies it unreasonably to the
facts of a particular prisoner’s case." Id. at 407-08.

   If the district court applies the deferential AEDPA standard and
rejects a petitioner’s constitutional claims on the merits, 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). Otherwise a COA will
not issue.

   After oral argument in this case, the Supreme Court elaborated on
this requirement in Miller-El v. Cockrell, 123 S. Ct. 1029 (2003).

     As mandated by federal statute, a state prisoner seeking a
     writ of habeas corpus has no absolute entitlement to appeal
     a district court’s denial of his petition . . . . The COA deter-
     mination under § 2253(c) requires an overview of the claims
     in the habeas petition and a general assessment of their mer-
     its. We look to the District Court’s application of AEDPA
     to petitioner’s constitutional claims and ask whether that
     resolution was debatable amongst jurists of reason . . . . To
     that end, [the Supreme Court’s] opinion in Slack held that
     a COA does not require a showing that the appeal will suc-
     ceed. Accordingly, a court of appeals should not decline the
     application for a COA merely because it believes the appli-
     cant will not demonstrate an entitlement to relief.

Id. at 1039 (internal citation omitted).

   On the other hand, the Supreme Court made clear that its holding
"should not be misconstrued as directing that a COA always must
issue. Statutes such as AEDPA have placed more, rather than fewer,
restrictions on the power of federal courts to grant writs of habeas
corpus to state prisoners . . . . It follows that issuance of a COA must
not be pro forma or a matter of course." Id. at 1039-40 (internal cita-
tion omitted).
                             ROWSEY v. LEE                              7
   In this case, Rowsey argues that (1) Rowsey’s due process rights
were violated by the bias and partiality of the trial judge; (2) the state
unconstitutionally applied its capital sentencing statute by arbitrarily
deciding to seek the death penalty in Rowsey’s case; (3) Rowsey’s
right to effective assistance of counsel was violated when his trial
counsel failed to seek a clarification of a juror’s response to questions
during the jury poll; and (4) Rowsey’s due process and equal protec-
tion rights were violated by the imposition of a death sentence when
the trial jury did not return a unanimous death verdict. We address
each argument in turn under the above standards.

                                   III.

   First, Rowsey argues that his due process rights were violated by
the trial judge’s bias and partiality against him. Both the MAR court
and the district court denied this claim. In order to determine whether
a COA should issue, we ask whether jurists of reason could have
resolved this claim differently. Miller-El, 123 S. Ct. at 1039. While
we grant the COA, we affirm the district court judge’s dismissal of
the claim.

   Rowsey alleges that the trial judge made nineteen separate com-
ments that demonstrate unconstitutional bias. These comments
included statements that the trial judge "was never going to try
another capital case;" that the judge "did not like any individual voir
dire;" that if individual voir dire was granted the judge "would go
back to Durham and wait three weeks and [counsel should] call him
when they were through;" that "any delay or what he considered delay
would affect [trial counsel’s] compensation;" and that if the jury
returned a death sentence, "the defendant [should] be taken from the
courthouse to the Circle K where the murder occurred, shot six times
and stomped in the head." Rowsey argues that these comments, taken
together, prove that the judge was not impartial in his case. For his
part, the judge had no recollection of making the alleged statements.

   While "a fair trial in a fair tribunal is a basic requirement of due
process," not all claims of bias rise to a constitutional level. Withrow
v. Larkin, 421 U.S. 35, 46 (1975) (quoting In re Murchinson, 349
U.S. 133, 136 (1955)). In order to prevail in a deprivation of due pro-
cess claim, a defendant must show a level of bias that made "fair
8                           ROWSEY v. LEE
judgment impossible." Liteky v United States, 510 U.S. 540, 555
(1994). The state MAR court reviewed the entire record and found
that "the trial judge conducted the trial in a fair and impartial manner"
and the district court agreed. Given the nature of some of the com-
ments, however, we recognize that reasonable jurists might find the
district court’s assessment debatable. We therefore issue a COA on
this claim and proceed to the merits. The question now turns to
whether the state MAR court’s decision was contrary to, or an unrea-
sonable application of, clearly established Federal law. See Williams
v. Taylor, 529 U.S. 362.

    "[O]pinions formed by the judge on the basis of facts introduced
or events occurring in the course of the current proceedings, or of
prior proceedings, do not constitute a basis for a bias or partiality
motion unless they display a deep-seated favoritism or antagonism
. . . ." Liteky, 510 U.S. at 555. Most of the comments Rowsey alleges
the trial judge to have made demonstrate "expressions of impatience,
dissatisfaction, annoyance, and even anger," and do not rise to the
level of impermissible judicial bias. Id. at 555-56. We do agree with
the district court that some of the alleged remarks, such as the sugges-
tion that the victim "was gay and the defendant was probably a latent
homosexual," "push[ed] private judicial commentary to its ethical
limit." All of the alleged comments, however, were made outside the
presence of the jury. Rowsey points to nothing the trial judge said or
did in the jury’s presence that would portray a biased outlook on his
case. It was the jury, not the trial judge, that found Rowsey guilty and
recommended a sentence of death. Therefore in order to argue that he
was deprived of a fair trial, Rowsey must also show that the trial
judge’s bias somehow affected the outlook or deliberations of the
jurors.

   The district court extensively reviewed the trial record and found
that the trial judge went to considerable lengths to ensure that Rowsey
obtained a fair trial. As the district court pointed out, the trial judge
repeatedly made discretionary rulings in favor of Rowsey. For
instance, during voir dire the trial judge granted Rowsey’s challenges
for cause several times, and even hesitated to dismiss a potential juror
who stated that he would "automatically vote against the death pen-
alty." At trial, the judge ordered a redaction of Rowsey’s statement
to the police that he had brandished a gun at a restaurant one day prior
                            ROWSEY v. LEE                              9
to the murder, and over a hearsay objection allowed testimony by an
inmate to the effect that the inmate had heard Steele admit to being
the shooter.

   Despite these numerous rulings in Rowsey’s favor, Rowsey argues
that the trial judge’s bias played a role in the judge’s decision to sub-
mit, over Rowsey’s objection, the statutory mitigating circumstance
that Rowsey had no significant history of prior criminal activity.
Under North Carolina law, if the evidence presented might support a
statutory mitigating circumstance then the judge must submit that cir-
cumstance, even over the defendant’s objection. Rowsey, 472 S.E.2d
at 911 (citing State v. Ingle, 445 S.E.2d 880, 893 (N.C. 1994)). On
direct review the North Carolina Supreme Court held that because
Rowsey’s prior convictions consisted of mostly property crimes and
no felonies, a rational juror could have concluded that Rowsey did not
have a significant prior criminal history, and that the submission of
the mitigating factor was mandatory. Id. at 912. We agree with the
North Carolina Supreme Court and find no basis for the assertion that
the trial judge’s decision was motivated by improper bias.

   Rowsey has offered no evidence that the trial judge’s alleged par-
tiality in any way affected Rowsey’s right to a fair trial. Like the dis-
trict court, we cannot conclude that the state MAR court unreasonably
applied clearly established federal law in holding that Rowsey
received a fair trial. We therefore affirm the district court’s dismissal
of this claim.

                                  IV.

   Next, Rowsey argues that N.C.G.S. § 15A-2000, North Carolina’s
Capital Sentencing Statute, was applied to deny him his equal protec-
tion rights. Rowsey argues that his co-defendant Steele was as culpa-
ble as he was. Because Steele was permitted through a plea bargain
to avoid the possibility of a death sentence, Rowsey contends North
Carolina’s decision to try him capitally was arbitrary and in violation
of the Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution. The state MAR court denied this claim and the district
court found that the MAR court’s decision was not contrary to, or an
unreasonable application of, clearly established federal law. We
10                          ROWSEY v. LEE
inquire only whether "[the district court’s] resolution was debatable
amongst jurists of reason." Miller-El, 123 S. Ct. at 1039.

   "[T]he decision to prosecute is particularly ill-suited to judicial
review." Wayte v. United States, 470 U.S. 598, 607 (1985). The gov-
ernment therefore retains broad discretion in prosecutorial decisions,
"so long as the prosecutor has probable cause to believe that the
accused committed an offense defined by statute," and the decision to
prosecute is not "deliberately based upon an unjustifiable standard
such as race, religion, or other arbitrary classification." Bordenkircher
v. Hayes, 434 U.S. 357, 364 (1978) (internal quotations omitted).

   "The requirements for a selective-prosecution claim draw on ordi-
nary equal protection standards." United States v. Armstrong, 517
U.S. 456, 465 (1996) (internal quotations and citation omitted). To
succeed on a selective-prosecution claim, a defendant must demon-
strate that the prosecutor’s decision "was based on an unconstitutional
motive." Wade v. United States, 504 U.S. 181, 185-86 (1992).

   Rowsey does not even allege that his prosecutor was motivated by
a discriminatory purpose. Instead, he contends that the prosecutor
used "unarticulated criteria" to seek the death penalty in his case.
Rowsey’s entire argument rests on his assessment that Steele was at
least as culpable as he was, and that a decision to seek the death pen-
alty for Rowsey but not Steele was arbitrary and based on impermissi-
ble factors.

   Rowsey’s premise, however, is flawed. The State advanced sub-
stantial evidence indicating that he was the shooter. As the district
court pointed out, the State introduced evidence of Rowsey’s shoe
prints in the blood surrounding the victim’s head, as well as evidence
that Rowsey possessed the murder weapon both before and after the
murder. After examining this evidence and listening to Steele’s testi-
mony, which was subject to extensive cross-examination, the jury
concluded that Rowsey was indeed the shooter. Contrary to Rowsey’s
argument, then, there were significant factors to distinguish the two
cases.

  The MAR court found that Rowsey failed to submit any evidence
supporting a claim that the prosecution was motivated by a discrimi-
                            ROWSEY v. LEE                             11
natory purpose, and the district court agreed. In fact, Rowsey does not
even purport to demonstrate what unconstitutional criteria the prose-
cution employed in his case. In light of the dearth of evidence demon-
strating any discriminatory purpose, Rowsey has failed make a
substantial showing of the denial of his equal protection rights. See
28 U.S.C. § 2253(c)(2).

                                   V.

   Rowsey’s final claims all relate to the same incident, the jury poll
of juror Eleanor Leath. Rowsey claims: (1) that the failure of trial
counsel to object to the poll of Leath or ask for a clarification of her
response constitutes ineffective assistance of counsel; and (2) that the
trial jury did not return a unanimous death verdict because Leath did
not intend to assent to such a verdict. Rowsey supports these claims,
in part, with an affidavit submitted by Leath, more than four years
after the trial, attesting that she did not intend to assent to the death
sentence.

                                   A.

   As to the ineffective assistance of counsel, Rowsey argues that
because Leath became emotional during the jury poll and did not ini-
tially answer the trial judge’s question, trial counsel should have
objected and asked the trial judge to obtain a clarification of Leath’s
response. The state MAR court denied this claim and the district court
found the state court’s application of Supreme Court precedent rea-
sonable.

   Under N.C.G.S. § 15A-2000, the jury sentence recommendation for
capital felonies must be unanimous. After the jury foreman delivers
the recommendation, the trial judge must poll each juror to ensure that
each juror agrees to the sentence recommendation. N.C.G.S. § 15A-
2000(b)(3) (2002).

  The trial transcript reveals the following exchange during the jury
poll between Leath and the trial judge:

    THE COURT:          Ms. Leath, Ms. Leath, your foreman has
                        announced that the verdict of the jury is
12                          ROWSEY v. LEE
                        [ ] that the defendant, Mr. Rowsey, be
                        sentenced to death, was that your verdict
                        and do you still agree to that as being
                        your verdict in this case?

     MS. LEATH:         (No response)

     THE COURT:         Ms. Leath, I’ll repeat the question. Ms.
                        Leath, your foreman has announced that
                        the verdict of the jury is [ ] that the
                        defendant, Mr. Rowsey, be sentenced to
                        death, was that your verdict and do you
                        still agree to that as being your verdict in
                        this case?

     MS. LEATH:         (No response, becomes emotional.)

     THE COURT:         Ms. Leath, do you have an answer to the
                        question?

     MS. LEATH:         Yes (nods affirmatively).

     THE COURT:         And was your answer yes, ma’am?

     MS. LEATH:         Yes.

     THE COURT:         Madam Court Reporter, did you hear that
                        and record it?

     (Court reporter nods affirmatively)

     THE COURT:         All right.

After the judge polled the remaining five jurors, he asked the attor-
neys whether they had "[a]nything else in connection with the poll of
the jurors?" Counsel both responded "no."

   Rowsey argues that counsel’s failure to object to the poll was inef-
fective. In order to determine whether to grant a COA on this claim,
                             ROWSEY v. LEE                             13
we must briefly consider it against the familiar standard of Strickland
v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court
set forth a two part test for deciding ineffective assistance of counsel
claims. First, the defendant must show that, considering all of the cir-
cumstances, "counsel’s representation fell below an objective stan-
dard of reasonableness." Id. at 688. Second, a defendant must show
that the deficient performance resulted in actual prejudice. To satisfy
the second prong of Strickland, the defendant must show that "there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different." Id. at
694.

   Rowsey submitted an affidavit from an experienced North Carolina
attorney in support of his Strickland claim, attesting that trial counsel
fell below an objectively reasonable standard of representation by
failing to object to the jury poll. We need look no further than the trial
transcript, however, to find that trial counsel’s actions were objec-
tively reasonable. Leath was the sixth juror polled at the sentencing
hearing, and received the same question as the five jurors polled
before her. When Leath did not respond to the question, the judge
repeated it. Leath again failed to respond, and the judge asked her if
she had an answer to the jury poll question. Leath nodded yes, indi-
cating that she had an answer to the jury poll question. The judge then
referred back to the jury poll question, inquiring whether Leath’s
answer was yes. She replied "yes."

   Both the circumstances surrounding the poll and the dialogue
between the trial judge and Leath show that it was not unreasonable
for trial counsel to accept Leath’s assent to the verdict. The jury fore-
man announced that the jury had unanimously decided to recommend
a sentence of death. While Leath became emotional as a result of this
decision, nothing in her responses indicated that the jury foreman had
misinterpreted her assent or that she had changed her mind since the
jury deliberations. Furthermore, Leath gave absolutely no indication
that the trial judge had misinterpreted her answer when he proceeded
to poll the five remaining jurors. And the North Carolina Supreme
Court, considering a separate claim based on the same dialogue, held
that "a reasonable juror would have understood that the trial court’s
final question was referring to the critical question of whether she
assented to the jury verdict." Rowsey, 472 S.E.2d at 914.
14                          ROWSEY v. LEE
   Death sentences often produce emotional responses from the jurors
who impose them. It is precisely because of this fact, however, that
we must rely on the trial transcript and the surrounding circumstances
of the trial to determine the reasonableness of counsel’s conduct.
Rowsey does not suggest that a "no" answer was given. Rather, he
argues that Leath somehow intended to say "no." It would be a dan-
gerous step to base our decision on a juror’s recollection, years after
the fact, of his or her internal emotions and thought processes at the
time of the trial. This is especially true where no one has questioned
whether Leath answered "yes" to each of the questions asked of her.
Here, the trial court took great care to ensure that Leath assented to
the verdict, despite the fact that under North Carolina law a verbal
response is not required. See State v. Spruill, 360 S.E.2d 667, 697-98
(N.C. 1987). It was therefore reasonable for trial counsel to accept the
jury poll as proper.

                                  B.

   Rowsey’s final claims also rest on the proposition that Leath did
not intend to assent to the death verdict. Rowsey argues that "the trial
judge induced Juror Leath to assent to a verdict to which she dis-
agreed." Because Leath did not intend to assent to a death sentence,
Rowsey argues that the State failed to follow its own process by
imposing the death penalty without a unanimous verdict.

   On direct review, the North Carolina Supreme Court held that the
trial court properly conducted the jury poll and that Leath freely,
without any improper coercion, assented to the verdict. Rowsey, 472
S.E.2d at 913-14. Rowsey requested an evidentiary hearing on this
matter, but he could not produce before the district court any evi-
dence, aside from Leath’s affidavit, contradicting the clear showing
of Leath’s assent in the trial transcript. We therefore agree with the
district court’s finding that these claims are wholly without merit and
decline to issue a COA.

                                  VI.

   Although Rowsey’s judicial bias claim meets the § 2253 criteria for
issuance of a COA, that claim is without merit under the deferential
AEDPA standard. Rowsey fails to make a substantial showing of the
                            ROWSEY v. LEE                             15
denial of a constitutional right on any of his other claims. We there-
fore affirm the district court’s dismissal of Rowsey’s initial claim, and
decline to issue a COA on Rowsey’s remaining claims.

                  AFFIRMED IN PART AND DISMISSED IN PART
