                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT

                     __________________________

                            No. 01-10248
                     __________________________


WILLIAM WESLEY CHAPPELL,
                                              Petitioner-Appellant,


                                versus

JANIE COCKRELL, Director,
Texas Department of Criminal Justice,
Institutional Division,
                                               Respondent-Appellee.

         ___________________________________________________

             Appeal from the United States District Court
                  For the Northern District of Texas
                         (No. 4:00-CV-1663-A)
         ___________________________________________________

                           April 29, 2002




Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM*:

     A Texas jury convicted Petitioner-Appellant William Wesley

Chappell of the capital murder of Alexandra Heath and recommended

a death sentence. Chappell now seeks from this court a certificate


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that this opinion should not be published and is not precedent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

                                  1
of appealability (“COA”) to appeal from the district court’s denial

of habeas corpus relief.   Because his claims lack merit under the

requisite standards, we deny Chappell’s request.

                                  I.

                     FACTS AND PROCEEDINGS

     The Court of Criminal Appeals described the evidence presented

at Chappell’s trial as follows:

          [Chappell] was charged with murdering Alexandra
     Heath in the course of committing or attempting to commit
     burglary of a building owned by her mother, Martha
     Lindsey, with the intent to (1) commit the felony offense
     of retaliation against Lindsey or her husband, Elbert
     Sitton, or (2) commit the theft of property belonging to
     Lindsey or Sitton. Heath, Lindsey, and Sitton were all
     killed inside Lindsey’s home.

          The evidence illustrates that [Chappell] had a
     strained relationship with Lindsey, Sitton, and their
     daughter, Jane Sitton —— Alexandra’s half-sister.
     [Chappell], who was then 43 or 44 years old, and Jane,
     who was then 14 or 15 years old, began dating in 1981 or
     1982 and stopped seeing each other in 1983 or 1984. In
     May 1984, [Chappell] was indicted for molesting Jane’s
     daughter.    Lindsey had reported the offense to the
     police. In May 1987, [Chappell] was found guilty of one
     count of indecency with a child and was sentenced to five
     years’ confinement.    [Chappell] was released on bond
     pending appeal.

          After the indecency trial, the Lindsey/Sitton family
     congregated outside the courtroom. When [Chappell] came
     out, he informed Lindsey that “it wasn’t over yet” and
     that “he would get her for that.” [Chappell] related
     this threat to his then-wife Sally Hayes, denied
     molesting Jane’s daughter and said that Lindsey and the
     Sittons were after his money.1 [Chappell] stated that he

     1
      “Lindsey had filed a civil suit against him on behalf of
Jane’s daughter.” Chappell v. State, No. 72,666, slip op. at 5
n.6 (Tex. Crim. App. Oct. 13, 1999) (unpublished) (en banc)
(unanimous).

                                  2
wanted to “do away” with the Lindsey/Sitton family.

     In January 1988, Hayes drove [Chappell] to Lindsey’s
home, where Elbert and Jane also resided. [Chappell] had
purchased some gasoline and put it in jugs. Hayes let
[Chappell] out near Lindsey’s home and drove around for
fifteen minutes. When [Chappell] signaled her with his
flashlight, she picked him up. [Chappell] no longer had
all of the jugs and said that he had set fire to
Lindsey’s house. [Chappell] became upset when he later
learned that the home suffered relatively little damage
and that none of the occupants were injured.

     In February 1988, [Chappell] and Hayes went to a gun
show. Hayes testified that she purchased a 9-mm gun for
[Chappell] and [Chappell] purchased some ammunition, an
extra barrel, a spring, and a “small round thing with
holes in it” that fit over the barrel of the gun.
Thereafter, [Chappell] began working on a silencer for
the gun. Hayes testified that [Chappell] tested this
device at some property he had in Montague County. In
March 1988, [Chappell] and Hayes purchased two walkie-
talkies at a Radio Shack.

     In April 1988, [Chappell] settled an unrelated
personal-injury suit against a church and received a
cashier’s check for $66,000. That same month, [Chappell]
and Hayes went to Hornbeak, Tennessee, where Hayes owned
a house. [Chappell] brought $60,000 of his settlement to
put into certificates of deposit in hopes of preventing
the Lindsey/Sitton family from getting it.         Hayes
testified that [Chappell] planned to return to Texas and
the Lindsey home in order to kill anyone who happened to
be in it.

     On May 3, 1988, [Chappell] and Hayes left Tennessee
at 10:30 a.m. in a gray, burgundy, and black van. They
arrived in Fort Worth around 8:30 p.m. and stopped at a
grocery store on North Main Street. While Hayes went
into the store, [Chappell] changed into dark clothing,
makeup, and a wig. [Chappell] also had a black ski mask,
brown gloves, and a nylon tote bag containing a walkie-
talkie, the 9-mm gun, a pistol, the silencer, clips for
the guns, a crowbar, and wire cutters.

     Sometime after 9:00 p.m. Hayes let [Chappell] out of
the van near Lindsey’s home. Hayes then drove around the
neighborhood waiting for [Chappell] to contact her by
walkie-talkie.     Fifteen to twenty minutes later,

                           3
     [Chappell] contacted Hayes, and she picked him up. When
     he got into the van, [Chappell] stated that he had “shot
     Jane, her mother, and her daddy.” He also said that he
     had taken some money to make it look like a robbery. The
     pair then drove back to Tennessee, where they disposed of
     as much evidence as possible. [Chappell] was shocked
     when he later learned that it was not Jane, but her half-
     sister, Alexandra Heath, whom he had killed.

          Heath was shot several times while lying in bed and
     died at the scene. Before his death, Sitton told a Fort
     Worth police officer that an intruder wearing a ski mask
     had confronted Sitton and Lindsey in their bedroom, where
     they had been watching television.         After Lindsey
     complied with the intruder’s demand for money, the
     intruder shot the couple several times. Lindsey died two
     days later. Sitton, who survived for two months in the
     hospital, was able to tell the emergency room physician
     that he believed the intruder was the same man who raped
     his daughter or granddaughter.2

     During the fourteen years since the occurrence of these

events, the state has tried Chappell three times for the killing of

Alexandra Heath; in two of the trials, juries found him guilty of

capital murder and returned sentencing verdicts that require the

death sentence.   Chappell was first tried and sentenced for the

murder in 1989.   On direct appeal, however, the Texas Court of

Criminal Appeals reversed the judgment and remanded for a retrial

on the ground that the trial judge had erred by permitting the

venire to be shuffled twice.3   Chappell’s second trial resulted in

a mistrial after the court granted his supplemental motion for a


     2
      Id. at 4–7. “Dr. Sirous Partovi, the emergency room
doctor, could not remember whether Sitton said ‘daughter’ or
‘granddaughter.’” Id. at 7 n.7.
     3
      Chappell v. State, 850 S.W.2d 508, 511, 513 (Tex. Crim.
App. 1993).

                                 4
continuance.   In 1996 Chappell’s third trial ended as had the

first: the jury convicted him of capital murder and, in the

punishment phase, determined that his conduct was deliberate, that

he would probably threaten society with future violent crimes, and

that there were not enough mitigating circumstances to justify a

life sentence as opposed to death.      Given these determinations,

Texas law required that the trial court sentence Chappell to death.

This time, the Texas Court of Criminal Appeals affirmed.4

     In 1999, while Chappell’s state appeal was pending, he began

habeas proceedings. Both the state district court and the Court of

Criminal Appeals refused the requested writ.5 The federal district

court then denied Chappell’s applications for a writ of habeas

corpus6 and a COA.   Chappell timely applied to us for a COA.    We

have jurisdiction over his application under 28 U.S.C. §§ 1291 and

2253.7

                                II.

                             ANALYSIS

A.   Standard for Granting a COA



     4
      See Chappell, No. 72,666, slip op. at 17.
     5
      See Ex parte Chappell, No. 42,780-01 (Tex. Crim. App. Nov.
24, 1999) (unpublished) (en banc) (per curiam); Ex parte
Chappell, C-2-4249-0365173-A (Tarrant Co. Crim. D. Ct. No. 2,
Sept. 7, 1999).
     6
      Chappell v Johnson, No. 4:00-CV-1663-A, 2001 U.S. Dist.
LEXIS 1057, at *24 (N.D. Tex. Feb. 6, 2001).
     7
      See also FED. R. APP. P. 22(b).

                                   5
         The Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”)8 provides that, for this court to review a district

court’s denial of habeas relief to a state prisoner, we must first

issue a COA.9            This, in turn, we cannot do unless a petitioner

makes “a substantial showing of the denial of a constitutional

right,”10 which means that a petitioner must demonstrate that

“reasonable jurists could debate whether . . . the petition should

have been resolved in a different manner or that the issues

presented         were   adequate    to    deserve    encouragement    to   proceed

further.”11 This “reasonable jurists” standard is an objective one;

it does not ask whether every single one of the Nation’s jurists

has reached or would reach the same conclusion.12

         As we apply this standard in a capital case, “the nature of

the penalty is a proper consideration . . . but the severity of the

penalty does not in itself suffice to warrant the automatic issuing

of   a        certificate.”13       This   said,     we   generally   resolve   any


         8
      Pub. L. No. 104-132, 110 Stat. 1214 (1996). Chappell
applied for a federal writ on December 26, 2000. AEDPA therefore
governs his application.
         9
          See 28 U.S.C. § 2253(c)(1)(A) (1994 & Supp. V 1999).
         10
              28 U.S.C. § 2253(c)(2) (1994 & Supp. V 1999).
         11
      Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (internal
quotation marks and citations omitted) (citing Barefoot v.
Estelle, 463 U.S. 893, 894 & n.4 (1998)).
         12
              Williams v. Taylor, 529 U.S. 362, 410 (2000).
         13
      Barefoot, 463 U.S. at 893; Slack, 529 U.S. at 483 (“Except
for substituting the word ‘constitutional’ for the word

                                            6
uncertainty     about     the   propriety      of    granting     a   COA    in   the

petitioner’s favor.14      The petitioner’s showing, however, cannot be

merely conclusional, and must be supported by evidence in the

record.15

     Chappell’s application requires that we note two further

distinctions within this general standard of review.



     1.      Merits versus Procedure

     First, the Supreme Court counsels that if the district court

rejects a petitioner’s constitutional claims on the merits, then he

“must demonstrate that reasonable jurists would find the district

court’s     assessment    of    the   constitutional         claims   debatable   or

wrong.”16      If the district court denies a habeas petition on

procedural     grounds,    however,     a    COA    should    issue   only   if   the

petitioner “shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of a denial of

a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural



‘federal,’ § 2253 is a codification of the CPC standard announced
in Barefoot.”).
     14
      Moore v. Johnson, 225 F.3d 495, 500–01 (5th Cir. 2000),
cert. denied, 121 S. Ct. 1420 (March 26, 2001).
     15
      Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983)
(“[M]ere conclusory [sic] allegations do not raise a
constitutional issue in a habeas proceeding.”).
     16
          Slack, 529 U.S. at 484.

                                         7
ruling.”17     In evaluating such a showing, we need not analyze the

procedural issue first.     Rather, we may answer the constitutional

question if that would hasten a fair disposition of the case,18 even

though the Ashwander constitutional-avoidance canon should “inform”

our discretion in so doing.19

     2.      Facts versus Law

     Second, if a state court adjudicated a state prisoner’s claim

for a writ of habeas corpus on the merits, federal courts view the

petitioner’s claim through the “lens” of the scheme laid out in 28

U.S.C. § 2254(d).20     Under this scheme, with respect to questions

of fact, we are not to grant a writ of habeas corpus unless the

state court’s adjudication on the merits “resulted in a decision

that was based on an unreasonable determination of the facts in the

light of the evidence presented in the State court proceeding.”21

And in any federal habeas proceeding involving a state prisoner,

leaving aside the distinction between procedural and merits-based



     17
          Id. (emphasis added).
     18
      Id. at 485 (“Each component of the § 2253(c) showing is
part of a threshold inquiry, and a court may find that it can
dispose of the application in a fair and prompt manner if it
proceeds first to resolve the issue whose answer is more apparent
from the record and arguments.”).
     19
      Id. (citing Ashwander v. TVA, 297 U.S. 288, 347 (1936)
(Brandeis, J., concurring)).
     20
      Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000),
cert. denied, 121 S. Ct. 902 (Feb. 7, 2001).
     21
          28 U.S.C. § 2254(d)(2) (1994 & Supp. V 1999).

                                   8
denials, “a determination of a factual issue made by a State court

shall be presumed to be correct,” and the petitioner “shall have

the burden of rebutting the presumption of correctness by clear and

convincing evidence.”22

      Likewise, if a state court has resolved on the merits an issue

of law or a mixed issue of law and fact, we are not to grant a writ

unless the resulting decision was “contrary to, or involved an

unreasonable application of, clearly established federal law, as

determined by the Supreme Court of the United States.”23 A decision

is   “contrary     to”   established   federal   law    if   the   state   court

“applies a rule that contradicts the governing law set forth in

[Supreme Court] cases” or if the state court decides a case

differently       than    the   Supreme    Court       did   on    “materially

indistinguishable” facts.24       A state court “unreasonably applies”

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.”25


      22
           See 28 U.S.C. § 2254(e)(1) (1994 & Supp. V 1999).
      23
           28 U.S.C. § 2254(d)(1) (1994 & Supp. V 1999).
      24
           Williams, 529 U.S. at 405–06.
      25
      Id. at 407–08. See also Neal v. Puckett, 2002 WL 407382,
*3–4 (5th Cir.); id. at *13 (“In the absence of clear guidance
from the Supreme Court, we conclude that our focus on the
‘unreasonable application’ test under Section 2254(d) should be
on the ultimate legal conclusion that the state court reached and
not on whether the state court considered and discussed every
angle of the evidence.”).


                                       9
     With this statutory scheme firmly in mind, we examine the six

issues on which Chappell seeks a COA from us.         He asserts that

             (1) because the State based much of its case on the

     testimony of one accomplice-witness, the evidence did not

     sufficiently support Chappell’s capital murder conviction;

             (2) the evidence did not sufficiently support the jury’s

     finding of future dangerousness;

             (3) the trial judge unconstitutionally excluded hearsay

     evidence of another death row inmate’s “admissions” to having

     murdered Heath;

             (4) the trial court violated Chappell’s right to a fair

     trial when it denied his challenge for cause of a prospective

     juror;

             (5) the trial court violated Chappell’s right to a fair

     trial    in   refusing   to   instruct   the   jury   on   the   parole

     implications of a life sentence; and

             (6) the State denied Chappell a meaningful appeal by not

     giving him timely access to the record, reasonable access to

     the prison law library, and adequate time to prepare his

     direct appeal.

We shall address each issue in turn.

B.   Sufficiency of the Evidence to Convict

     Chappell first seeks a COA on his claim that the evidence

against him was insufficient to convict him.          The district court

held that this claim was procedurally barred and, alternatively,

                                     10
that it failed on the merits.                  We conclude that the procedural

ruling would be debatable among reasonable jurists; but, as we

shall show, the district court’s merits holding would not.                        We

therefore deny a COA on this issue.

     1.     Procedure

     In federal court, Chappell has clearly asserted that the

evidence was constitutionally insufficient to support his capital

murder conviction.            In state habeas proceedings, he framed this

argument        more     narrowly,      as    a    challenge   to     the   evidence

corroborating, and thus justifying the admission of, the testimony

of his then-wife, a crucial accomplice-witness.                      In making this

argument, he clearly invoked both the United States and Texas

Constitutions, as well as the State’s accomplice-witness statute.

On direct state appeal, in which he appeared pro se, however,

Chappell’s argument was much more garbled.                 The first two points of

error in his state appellate brief essentially contend that the

evidence    did        not   support    his    conviction,26   but    his   somewhat

incoherent legal argument was largely couched in terms of the law

of parties.       He mentioned insufficiency only twice,27 although the

second     of     these      passages    did       plead   insufficiency    in   the




     26
      This portion of his appellate brief devoted eight pages to
comparing the inculpatory and exculpatory evidence.
     27
      He first stated that “Appellant submits, that it’s
questionable, if, the sufficiency of the evidence raised to a
level of a party, to the offense.”

                                              11
alternative.28

     A two-step procedural problem arises.         First, the State urges

that if Chappell had presented a broad insufficiency claim on state

habeas, the state courts would have rejected it as procedurally

barred.29     Under Texas law, sufficiency claims not appealed are

defaulted, and cannot be raised in state habeas proceedings.30              To

whatever extent Chappell failed to plead insufficiency on direct

appeal,     however,   the   state   habeas   courts   did   not   apply   the

procedural bar. Rather, the habeas court adopted thirteen findings

of fact and fourteen conclusions of law with respect to this claim,

and the Court of Criminal Appeals agreed with the habeas court’s

reasoning.31


     28
      “Appellant contends that if the error is to be considered
‘trial error’ then jeopardy’s rule [sic] would bar retrial.
However, if the error is considered insufficiency, the Texas
Rules of Appellant [sic] Procedure, former Rule 81(c), new Rule
43.3(a), mandate[ ] an acquittal ordered in either scenario.”
     29
      Chappell, No. 72,666, slip op. at 2 (“[Chappell],
appearing pro se, . . . does not raise a challenge to the
sufficiency of the evidence.”).
     30
      Brown v. Collins, 937 F.2d 175, 178 (5th Cir. 1991); Clark
v. Texas, 788 F.2d 309, 310 (5th Cir. 1986) (“Under Texas law,
both the questions of the sufficiency of the evidence and of the
propriety of a jury charge may be raised on direct appeal but not
in a habeas proceeding.”).
     31
      Ex parte Chappell, No. 42,780-01 at 2. The substance of
the order of the Court of Criminal Appeals reads as follows:

          [Chappell] presents six allegations challenging the
     validity of his conviction and resulting sentence. The
     trial court has entered findings of fact and conclusions of
     law recommending the relief sought be denied.
          This Court has reviewed the record. The trial court’s

                                      12
     The problem encountered at the second step of this analysis is

that,     even   assuming   Chappell’s     claim    would   not   have    been

procedurally barred, he cannot raise it here in precisely the same

terms that he did in the state habeas proceedings.          The accomplice-

witness rule32 of Texas, which requires the State to corroborate

testimony of an accomplice-witness, is a creature of state criminal

procedure and is not cognizable with respect to a federal habeas

petition claim.33      The district court therefore concluded, and the

State argues on appeal, that Chappell cannot, in federal habeas

proceedings, transmute the narrower claim that he did pellucidly

raise     in   state   habeas   proceedings   ——   his   challenge   to   the

sufficiency of corroborating evidence —— into a broader challenge

to the constitutional sufficiency of the evidence to convict.

     We are not persuaded that Chappell never couched his state-

court habeas claim in federal terms.               Both state courts were

certainly “alerted to the fact that the prisoner[ was] asserting




     findings and conclusions are supported by the record and
     upon such basis the relief sought by the applicant is
     denied.

Id. Because this order refers to the trial court’s findings and
conclusions, it qualifies as an adjudication on the merits
entitled to deference under the AEDPA. Trevino v. Johnson, 168
F.3d 173, 181 (5th Cir. 1999).
     32
          See TEX. CODE CRIM. PRO. ART. 38:14.
     33
      See Brown, 937 F.2d at 182 n.12 (“The [federal]
Constitution imposes no requirement that the testimony of an
accomplice witness be corroborated by independent evidence.”).

                                      13
claims under the United States Constitution,”34 because the caption

of Chappell’s first state habeas claim read as follows:

     The trial court violated [Chappell’s] right to due process of
     law as guaranteed by Article I, Section 19 of the Texas
     Constitution and the Fifth and Fourteenth Amendments to the
     United States Constitution in denying applicant’s motion for
     instructed verdict and in imposing sentence in this case
     because there was no corroboration of Ms. Hayes’[s] testimony
     . . . .35

Chappell thus “fairly presented to the state courts the substance

of his federal habeas corpus claim.”36

     Yet, even if Chappell did not plead his broader federal

constitutional claim in the state courts, our jurisprudence permits

us to take cognizance of his sufficiency-of-corroboration argument

as a federal sufficiency claim.37       Chappell therefore did exhaust

in the state courts the first claim he raises here.      And, although

a federal court may raise, even sua sponte, a state procedural bar



     34
          Duncan v. Henry, 513 U.S. 364, 365–66 (1995) (per curiam).
     35
      Chappell’s Application for Post-Conviction Writ of Habeas
Corpus (filed May 21, 1999) at 35. Also, in describing his
claim, Chappell contended that “the prosecution was so defective
as to amount to a fundamental denial of due process as guaranteed
him under Article I, Section 19 of the Texas Constitution and the
Fifth and Fourteenth Amendments to the United States
Constitution.” Id. at 42.
     36
      Anderson v. Harless, 459 U.S. 4, 6 (1982) (internal
quotation marks omitted).
     37
      See Brown, 937 F.3d at 178–79 (“In our view, the instant
challenge to the sufficiency of the evidence was subsumed within
Brown’s sufficiency claim [regarding corroboration of testimony
by the accomplice-witness] on direct appeal. This is not a case
like Clark v. Texas, 788 F.2d at 310, in which the petitioner
failed to raise a sufficiency challenge altogether.”).

                                   14
that the state habeas courts did not apply,38 we find, on a close

call, that whether Chappell raised this claim on direct appeal is

debatable        among    reasonable   jurists.         We    therefore     pretermit

procedural considerations and determine whether Chappell makes a

substantial showing of a constitutional violation.39

     2.         Merits

     For us to issue a COA on the merits of Chappell’s sufficiency

claim, he must at least show that reasonable jurists could debate

the district court’s alternative merits denial.40                       This he has

doubly failed to do.

                a.     No Substantial Showing

     First, the district court ruled that Chappell had failed to

point     to    any    specific   defect     in   the   evidence      and     that   the

conclusional allegations in his petition were insufficient to

entitle him to habeas relief.              We agree that Chappell’s vague and

conclusional allegations, standing alone, are plainly inadequate.

His application to us, like his pleading in the district court,

recites        the    legal   standards,    describes        the   district    court’s

holding, and then merely states the following:

     38
          Magouirk v. Phillips, 144 F.3d 348, 357–58 (5th Cir.
1998).
     39
      We may deny a writ on the merits even if the petitioner’s
claim is unexhausted. See 28 U.S.C. § 2254(b)(2) (1994 & Supp. V
1999) (“An application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.”).
     40
          Slack, 529 U.S. at 484.

                                           15
     Petitioner-Appellant believes that whether the state
     sustained its burden to present sufficient evidence is
     debatable among jurists of reason and, further, a
     different court could resolve this issue in a different
     manner than the District Court did.     Therefore, this
     issue meets the requirements of Barefoot and this Court
     should issue a Certificate of Appealability allowing the
     appeal of this issue to proceed.

Such an unsupported assertion falls well short of the substantial

showing of the denial of a constitutional right that Chappell must

make for us to grant a COA on his sufficiency claim.41       We are

satisfied that the district court could have denied collateral

relief on this ground alone.

          b.     The Evidence Was Sufficient

     Out of an abundance of caution, however, we have followed the

district court’s lead and carefully examined the record evidence in

this case.     And, like the district court, we conclude that the

state habeas court’s findings of fact and conclusions of law with

respect to the accomplice-witness testimony firmly establish that

Chappell has failed to make a substantial showing with respect to

the sufficiency of the evidence to convict, likely because such a

showing   is   simply   not   possible   here.   Chappell   has   no

constitutional ground on which to base his insufficiency claim.

     The standard of review in habeas proceedings of a claim of

insufficient evidence is “whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of


     41
      See Ross, 694 F.2d at 1011–12 (applying this principle
pre-AEDPA).

                                  16
fact could have found the essential elements of the crime beyond a

reasonable doubt.”42          If we were to apply this standard, we would

make all reasonable inferences and credibility determinations in

support of the verdict.43          Here, to secure a verdict, the State was

required        to   prove,   as   essential   elements,   that   Chappell   (1)

intentionally caused the death of Alexandra Heath (2) in the course

of committing or attempting to commit burglary by entering a

building without the effective consent of its owner and therein

committing a felony —— either theft or retaliation.44

     As the state habeas court summarized in the following findings

of fact, not only did the accomplice-witness give damning testimony

against Chappell, but other evidence and witnesses corroborated her

testimony, point by point.

     2.   Sally Hayes, [Chappell’s] wife and accomplice,
     testified that:
          a.   On May 3, 1988, she and [Chappell] drove from
               Tennessee to Fort Worth in a gray, burgundy,
               and black Dodge van, arriving around 8:30 p.m.
          b.   [Chappell] changed into black pants, a navy
               sweatshirt, a black jacket, black makeup, and
               black wig; he carried a black nylon tote bag
               with a walkie-talkie, 9mm gun, silencer,
               crowbar, and snippers inside, and a black ski
               mask.
          c.   Sometime after 9:00 p.m., she let [Chappell]
               out of the van near the Lindsey-Sitton home

     42
      Jackson v. Virginia, 443 U.S. 307, 309 (1979) (emphasis
original).
     43
          Id.
     44
      TEX. PENAL CODE ANN. §§ 19.02 (murder), 19.03 (capital
murder), 30.02(a)(1) (burglary), 36.06(a)(1) (retaliation)
(Vernon 1994).

                                         17
          and then drove around the neighborhood waiting
          for him to contact her by walkie-talkie.
     d.   About 15–20 minutes later, she received
          [Chappell’s] call and went to 22nd Street to
          pick him up, where he told her that he “shot
          Jane, her mother and daddy.”

[3]. After his conviction for indecency with a child,
[Chappell] threatened Martha Lindsey that “it wasn’t over
yet” and that he “would get her for that.” [testimony of
Vickie Lynn Belt]

[4]. On March 23, 1988, [Chappell] purchased two walkie-
talkies from Radio Shack. [testimony of Scott Andrew
Wetmore]

[5]. On May 2, 1988, [Chappell] told Lillie Cunningham
that he was returning to Texas the next day. [testimony
of Lillie Summers Cunningham]

[6]. On May 3, 1988, a white man wearing a ski mask
entered the home of Martha Lindsey and Elbert Sitton and
fired several shots.    [testimony of Lieutenant Thomas
Carl Swan, who related what the wounded Elbert Sitton
told him in the hospital; Sitton also testified that the
masked man demanded money, which Lindsey gave him]

[7]. After the shooting, Kevin Barrington, the victims’
neighbor, saw a figure wearing all dark clothes.
[testimony of Kevin Barrington]

[8]. About the same time, Mike Torres observed a white
man walking down 22nd Street in all black clothes with a
ski mask over his face. [testimony of Mike Torres]

[9].   Mr. Torres observed the man pull out a walkie-
talkie, walk to the corner, and jump into a van.
[testimony of Mr. Torres]

[10]. The bullets recovered from Alexandra Heath’s body
were a 9mm Luger caliber, as were two of the bullets
recovered from Martha Lindsey’s body. [testimony of
Lieutenant Swan]

[11]. [Chappell] attempted to create an alibi for himself
by falsely suggesting to several witnesses he was in
their company in Tennessee on the night of this offense
and early the following morning. [testimony of Claude
Cranford, April Ann Glisson, and Penny Gail Oseman]

                           18
     [12]. [Chappell] attempted to have his cellmate bonded
     out of jail in order to stage Ms. Hayes’ [sic] suicide
     after leaving a note exonerating him and implicating his
     friend Ray Pruitt. [testimony of Christopher Patrick
     Carroll]

Chappell has not specifically contested any of these findings, much

less presented clear and convincing evidence to refute any of them.

The presumption of correctness therefore applies to them.                These

findings, viewed in the light most favorable to the verdict, amply

support each essential element of capital murder. In claiming that

the evidence was constitutionally insufficient to convict, Chappell

does not —— and cannot —— make a substantial showing of the denial

of a constitutional right.

C.   S
     .ufficiency of the Evidence of Future Dangerousness

     Chappell also contends that the evidence is insufficient to

support the jury’s affirmative finding that there was a probability

that Chappell would in the future commit criminal acts of violence

that would constitute a continuing threat to society.               Texas law

requires that a jury make this finding before the court may impose

the death sentence.45

     1.       No Substantial Showing

     The     district   court   rejected   this   claim   because     Chappell

offered “nothing but conclusory [sic] allegations in support of

this allegation.”        Chappell   has    offered   nothing   more    in   his

application to us. Instead of explaining why the evidence does not

     45
          TEX. CRIM. PROC. CODE ANN. 37.0711(b)(2) (Vernon 1981 & Supp.
2002).

                                     19
support an affirmative answer to the special issue, Chappell merely

states     that    “it      is   clear    that     the   evidence    at   trial   was

constitutionally insufficient to support an affirmative answer to

the ‘future dangerousness’ issue,” and that “[n]o rational juror

could     have    answered       this    special    issue   beyond    a   reasonable

doubt[.]”         As   we    have   already      explained,    such   conclusional

allegations do not justify the issuance of a COA.

     2.      The Evidence Was Sufficient

     Again, however, because this is a capital case, we have

exercised caution and reviewed all the pertinent record evidence.

Our review convinces us that Chappell can make no showing, much

less a substantial one, that he has been denied any constitutional

right with respect to the sufficiency of evidence supporting the

jury’s affirmative finding of future dangerousness.                   If we were to

review whether the evidence is sufficient to support the jury’s

finding of future dangerousness, we would again apply the standard

stated above —— whether any rational trier of fact could answer the

special issue affirmatively.46

     The state court conducted a thoughtful and thorough analysis

of the record evidence.             The court concluded from this analysis

that “[t]he evidence shows that [Chappell], in an attempt to avoid

responsibility for molesting a child, engaged in an escalating


     46
      Miller v. Johnson, 200 F.3d 274, 286–88 (5th Cir. 2000)
(applying the Jackson standard to a jury’s “continuing threat”
finding).

                                            20
course of violence from threat to arson to the calculated murder of

three people and then, in order to avoid responsibility for three

murders, arranged for the murder of his wife-accomplice and the

implication of a friend in these murders.”        The conclusion that

this evidence, which Chappell’s application does not contest,

sufficiently supported the jury’s finding of future dangerousness

is not debatable among jurists of reason.

     As Chappell has made no substantial showing of the denial of

a constitutional right, we deny his request that we issue a COA on

this claim.

D.   Exclusion of Hearsay “Admissions”

     Chappell next complains of the trial court’s refusal to permit

him to present hearsay statements of Ricky Lee Green, another death

row inmate, to show that Green, and not Chappell, murdered Heath

and her parents.   More specifically, Chappell argues that “[b]y

excluding all testimony regarding [Green’s] multiple admissions

that he was the one who committed these murders, the trial court

deprived [Chappell] of the right to present a defense and rendered

his trial fundamentally unfair.”       We agree with the district

court’s   determination   that   Chappell   has   failed   to   make   a

substantial showing that the exclusion of these hearsay statements

amounted to the denial of a constitutional right.

     We begin our analysis of this issue by briefly reciting the

procedural history of Chappell’s attempts to secure Green’s live

testimony at trial. The trial court held hearings in October 1993,

                                  21
November 1993, and December 1995 on motions regarding allegations

that Green had confessed to the murders.          Green was not present at

the first hearing.       During the November 1993 hearing, which Green

did attend, the trial court inquired into his competency and then

admonished him about his rights and gave all statutory warnings.

When the court then asked specifically whether Green wished to

waive   the    attorney-client      privilege    and     have    communications

allegedly made to his attorney, Danny Burns, disclosed, Green

unequivocally       answered    “No.”    The   court   also     asked:      “Do   you

understand that by saying no now, you are basically saying all of

those letters and things you have written, you didn’t intend?                     Is

that it?[,]” to which Green answered “Yes.”              Green also withdrew

the waiver-of-privilege request wherein he told Burns to disclose

any   letter   to    Chappell’s    attorneys.      The    court      then    denied

Chappell’s attorney’s request for the court to compel Burns to

produce the previous letter, and refused the request to view any

such letter in camera.

      During the December hearing, before Chappell’s retrial, Green

invoked his Fifth Amendment right not to testify.                 When he first

did so, Green was determined by the trial court to be competent and

able to understand his right not to testify. Green then repeatedly

asserted his right not to testify at Chappell’s trial.                   Chappell,

not surprisingly, still wished to offer the evidence through

various   out-of-court         declarations    allegedly      made    by     Green.

Chappell’s counsel argued that even though these statements were

                                        22
hearsay, they were nevertheless admissible as statements against

penal interest.        After conducting a hearing, the trial court

refused to admit the statements, concluding that they did not

satisfy the reliability requirement of the relevant state rule,

which mandates that a statement against penal interest not be

admitted “unless corroborating circumstances clearly indicate the

trustworthiness of the statement.”47    Chappell has not directed our

attention to any such corroborating circumstances.

     The law is well settled that “[a] state court’s evidentiary

rulings present cognizable habeas claims only if they run afoul of

a specific constitutional right or render the petitioner’s trial

fundamentally unfair.”48      Here, Chappell in effect complains that

the trial court refused to allow unreliable hearsay evidence to be

presented to the jury.        But he has failed to show that, in so

doing, the Texas court unreasonably applied federal law.

     The Compulsory Process Clause of the Sixth Amendment gives a

defendant the right to obtain favorable testimony from witnesses,

and this right applies to the states through the Due Process clause

of the Fourteenth Amendment.49      “The right to offer the testimony

of witnesses . . . is in plain terms the right to present a

defense, the right to present the defendant’s version of the facts



     47
          TEX. R. EVID. 804(24).
     48
          Johnson v. Puckett, 176 F.3d 809, 820 (5th Cir. 1999).
     49
          Washington v. Texas, 388 U.S. 14, 19 (1967).

                                   23
as well as the prosecution’s to the jury so that it may decide

where the truth lies.”50

       Of the Supreme Court cases interpreting this right, the one

that    most        closely      parallels       Chappell’s      claim,   Chambers     v.

Mississippi,51 stands at best52 for the proposition that when a state

court refuses to admit into a murder trial the confession of a

third       party    to    the   crime     for     which   the    defendant   is   being

prosecuted,         such    a    refusal     may    violate      due   process   if   the

confession bears “persuasive assurances of trustworthiness”53 or

“considerable assurance of [its] reliability.”54

       Green’s “confession” bears no such assurances. In considering

the propriety of its exclusion, under both federal and state law,

the Texas Court of Criminal Appeals summarized the trial court’s

factual findings as follows:

            First, the trial court found that Green’s confession
       did not coincide with the facts of the instant case.
       Testimony at the hearing showed that Green told defense
       investigator Tommy Brown that he killed “Inga” after they


       50
            Id.
       51
            Chambers v. Mississippi, 410 U.S. 284 (1973).
       52
      We last discussed Chambers in detail in Little v. Johnson,
162 F.3d 855 (1998), where we stated that Chambers stands for a
more limited proposition: that “certain egregious evidentiary
errors may be redressed by the due process clause.” Id. at 860
(quoting Barefoot, 697 F.2d at 593, and citing Maness v.
Wainwright, 512 F.2d 88, 91 (5th Cir. 1975) as “recognizing
factual limits” on the Chambers holding).
       53
            Id. at 302.
       54
            Id. at 300.

                                             24
     had been out drinking and then killed her parents.
     However, Heath was no longer going by the name “Inga,”
     having changed her name to “Alexandra.” Further, the
     autopsy results showed no alcohol present in Heath’s
     system at the time of her death.
          Second, the trial court found that Green’s four
     known murders involved knives and a different type of
     motive and victim.    Former Fort Worth Police Officer
     Danny LaRue investigated the capital murder for which
     Green was on death row. LaRue testified that in all of
     Green’s confirmed murders, the weapon of choice was
     always a knife, the victims were always loners, and the
     murders had sexual overtones . . .
          Third, the trial court held that Green’s statements
     were not trustworthy, based on the following: (1) the
     amount of time and opportunity that [Chappell] and Green
     had together on death row to discuss the case; (2) Green
     had previously expressed a desire to take the blame for
     former death-row inmate John Yarborough’s case; and (3)
     [Chappell] confessed to Yarborough about the instant
     crime.
          . . .
          The trial court found that death-row inmate David
     Wayne Stoker . . . had told defense counsel that Green
     killed   the   Sitton/Lindsey    family   over   a   drug
     deal——contrary to Green’s confession. . . .
          Lastly, defense investigator Edgar Loven testified
     that Green had confessed to Roger Thieleman while the two
     were being bused back to Tarrant County in February,
     1992. The trial court found that the information was
     unreliable because Tarrant County booking records show
     that Green was not incarcerated in Tarrant County during
     that time period.55

These findings amply support the trial court’s exclusion of Green’s

“confession.”

     In this court, rather than challenge these findings, which are

therefore presumed to be correct, Chappell takes issue with the

Court of Criminal Appeals’s reliance on United States v. Scheffer,56


     55
          Chappell v. State, No. 72,666, slip op. at 10–12.
     56
          523 U.S. 303 (1998).

                                   25
in which the United States Supreme Court upheld a per se exclusion

of polygraph test results from military courts martial.57                     In

Scheffer, though, the Court made clear that “[a] defendant’s right

to present relevant evidence is not unlimited, but rather is

subject to        reasonable     restrictions.”58     Chappell’s   attempt    to

distinguish Scheffer on the ground that it is inapplicable to

factual evidence tending to negate guilt rings hollow in light of

the Supreme Court’s emphatic repetition that “[t]he accused does

not     have     an   unfettered    right    to   offer   testimony   that    is

incompetent, privileged, or otherwise inadmissible under standard

rules of evidence. The Compulsory Process Clause provides him with

an effective weapon, but it is a weapon that cannot be used

irresponsibly.”59         In any event, this weapon certainly cannot be

used        to   force    the   admission    at   trial   of   unreliable    and

unsubstantiated hearsay testimony.

       The trial court gave Chappell a full and fair opportunity to

substantiate the hearsay testimony that he wished to present to the

jury.         That Chappell failed to do so with either convincing

evidence or corroborating testimony bolsters our conclusion that

the district court did not act unreasonably in rejecting this



       57
            Id. at 306–07, 317.
       58
            Id. at 308.
       59
      See Taylor v. Illinois, 484 U.S. 400, 410 (1988) (holding
that a trial court may constitutionally exclude the testimony of
a material witness as a discovery sanction).

                                        26
claim.     Here, the state trial court did not err in excluding

Green’s hearsay statements, so neither the state courts nor the

district court erred in denying habeas relief.           As Chappell has

failed to make a substantial showing that the exclusion of Green’s

uncorroborated hearsay statements violated his constitutional right

to present a defense or rendered his trial fundamentally unfair, we

decline to issue a COA on this claim as well.

E.   Denial of Challenge of Venireman for Cause

     Chappell also contends that he was denied his right to a fair

jury-selection process when the trial court denied his challenge

for cause to the seating of a prospective juror, venireman Edward

Brett     Lea.      Specifically,   Chappell   insists   that    Lea    “was

disqualified to sit on a capital murder jury and apply the law

regarding        mitigating   circumstances”   because   Lea    could    not

distinguish between whether Chappell’s future dangerousness was a

“possibility” or a “probability.”60        The district court concluded

that these contentions are without merit; and since this conclusion

is indisputable among jurists of reason, Chappell can make no

substantial showing that would warrant the issuance of a COA.

     Under the Sixth Amendment, a prospective juror may be excluded

for cause if his views regarding the death penalty would “prevent


     60
       The second special issue asked the jury “whether there is
a probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society.”
TEX. CODE CRIM. PROC. ANN. 37.0711(b)(2) (emphasis added) (Vernon
1981 & 2002 Supp.).

                                     27
or substantially impair the performance of his duties as a juror in

accordance with his or her oath.”61               For example, a challenge for

cause must be granted if a prospective juror states that he would

automatically      impose       a    death      sentence     without    considering

individual aggravating and mitigating circumstances.62 A potential

juror may, however, be rehabilitated by counsel or the court; and

if it becomes apparent that the juror could follow the law in

accordance with his oath and the court’s instructions, denial of a

challenge for cause would be proper, and the challenged venireman

could serve on the jury. Moreover, a state trial court’s “implicit

finding of impartiality in its denial of the petitioner’s challenge

for cause” is a determination of fact, subject to a presumption of

correctness on collateral review.63

     To     receive   a   COA       on   this   claim,     Chappell    must    make   a

substantial showing that jurists of reason would find the district

court’s disposition of this claim debatable or wrong.                         The most

concise analysis of his claim is that of the Court of Criminal

Appeals, which conducted a painstaking review of the relevant

testimony, and concluded that

     [t]he record shows that although at one point Lea
     characterized the terms [“possibility” and “probability”]
     as “synonymous” and “interchangeable,” he later clarified

     61
          Adams v. Texas, 448 U.S. 38, 45 (1980).
     62
          See Morgan v. Illinois, 504 U.S. 719, 729 (1992).
     63
      Montoya v. Scott, 65 F.3d 405, 419 n.29 (5th Cir. 1995);
see also Fuller v. Johnson, 114 F.3d 491, 500–01 (5th Cir. 1997).

                                           28
     and retracted his characterization by stating that the
     terms were “not exactly interchangeable,” noting that
     “probabilities” may be determined while “possibilities”
     are infinite. When a prospective juror’s answers are
     vacillating, unclear, or contradictory, the trial judge’s
     superior point of view is particularly important and
     deserving of our deference; and we will hold that the
     trial judge abused his discretion only if his decision is
     not supported by the record. . . . Having viewed Lea’s
     voir dire as a whole, we hold that the trial judge did
     not abuse his discretion by denying the challenge for
     cause.64

Although he contends that the Court of Criminal Appeals effectively

cherry-picked some of Lea’s responses to justify the denial of the

claim, Chappell points to none of Lea’s responses that the court’s

alleged selectivity omitted.             Instead, Chappell stacks inaccuracy

on inaccuracy: He states that Lea never retreated from his initial

statement   that    the     terms   “possibility”       and   “probability”    are

synonymous, and therefore, argues Chappell, “[s]ince admittedly all

things are possible, a death sentence was assured.”

     Chappell      has    failed    to    show   that   the   district      court’s

determination was incorrect. The record shows that the trial court

probed    extensively       into    Lea’s      understanding     of   the    words

“probability” and “possibility.”               At no point did any of Lea’s

answers mandate the conclusion urged by Chappell —— that Lea was

predisposed to vote “yes” on this special issue, no matter what the

evidence showed.         Rather, Lea clearly said that whether the death

penalty would be appropriate would depend on the evidence.


     64
      See Chappell v. State, No. 72,666, slip op. at 16–17
(citations omitted).

                                          29
     Accordingly, we deny Chappell’s request for a COA on this

claim.

F.   Jury Instruction Regarding Parole

     Chappell insists that he was denied a fair trial by the trial

court’s     refusal   to   instruct   the   jury   that   if   Chappell   were

sentenced to life imprisonment, he would not be eligible for parole

within the remainder of the violent period of his life.65          In Texas,

however, parole eligibility is not a proper consideration for

jurors during sentencing in capital cases.66              The Texas Court of

Criminal Appeals has held that the refusal to provide such an

instruction does not violate the Texas Constitution.67

     Chappell contends that under Simmons v. South Carolina,68 due

process requires that a parole instruction be given in his case.

In Simmons, the United States Supreme Court held that due process



     65
      Chappell committed his capital offense in May 1988. At
that time, Texas law provided that a defendant convicted of
capital murder who receives a life sentence is not eligible for
parole until his actual time served equals fifteen years of
confinement, without consideration of good-time credits. See
former TEX. CODE CRIM. PROC. ANN. 42.12 § 3f(a)(1)(A) (Vernon 1979)
and current § 3g(a)(1)(A) (Supp. 2002). In this case, Chappell
would have been 68 years old before becoming entitled to be
considered for parole. He does not refer us to any evidence
regarding the degree of recidivism among 68-year-olds who have
been released after serving lengthy sentences for murder.
     66
      See Santellan v. State, 939 S.W.2d 155, 170 (Tex. Crim.
App. 1997).
     67
      See Smith v. State, 898 S.W.2d 838, 846–47 (Tex. Crim.
App. 1995), cert. denied, 516 U.S. 843 (1995).
     68
          512 U.S. 154 (1994).

                                      30
requires the sentencing jury to be informed that the defendant is

ineligible for parole when the defendant’s future dangerousness is

at issue and state law absolutely prohibits the defendant’s release

on   parole.69        In   such   a   case,   the    defendant    may   obtain     an

instruction regarding that prohibition, to enable the jury to

consider the impossibility of parole while it debates future

dangerousness.

      As the district court correctly observed, however, the Simmons

plurality expressly distinguished Texas’s sentencing scheme as not

including a “life-without-parole sentencing alternative to capital

punishment.”70 The plurality also stated that it would not “lightly

second-guess      a   decision    whether     or    not   to   inform   a   jury   of

information regarding parole” when parole is available.71                   We have

repeatedly determined that Simmons does not apply to Texas capital

cases: A Texas court’s refusal to instruct the jury regarding

parole passes federal constitutional muster.72                  Furthermore, our


      69
           Id. at 168–69 (Brennan, J.) (plurality).
      70
           Id. at 168 n.8.
      71
           Id. at 168 n.8.
      72
      See Wheat v. Johnson, 238 F.3d 357, 361 (5th Cir.)
(collecting cases), cert. denied, 121 S.Ct. 2226 (2001):
     We have repeatedly recognized that the Simmons rule
     applies only when there is a life-without-possibility-of-
     parole alternative to the death penalty, an alternative
     that does not exist in Texas. To hold that a lengthy
     parole ineligibility is the de facto equivalent of a life
     sentence without possibility of parole, as [petitioner]
     argues, would create a new rule under the law of our
     Circuit.

                                         31
jurisprudence in this area has recently received the support of

Ramdass v. Angelone.73    In that case, the Supreme Court rejected a

capital petitioner’s contention under Simmons that a hypothetical

future event, his “potential parole ineligibility,” required that

a parole ineligibility instruction be given to the sentencing

jury.74

     Reduced to its essence, then, this claim for relief asks that

we announce a new rule of constitutional law regarding parole

instructions and apply it to this case.    This we cannot do.75

     Because the district court (and for that matter, the state


See also Hughes v. Johnson, 191 F.3d 607, 617 (5th Cir. 1999);
Muniz v. Johnson, 132 F.3d 214, 224 (5th Cir. 1998); Allridge v.
Scott, 41 F.3d 213, 222 (5th Cir. 1994) (“We therefore read
Simmons to mean that due process requires the state to inform a
sentencing jury about a defendant's parole ineligibility when,
and only when, (1) the state argues that a defendant represents a
future danger to society, and (2) the defendant is legally
ineligible for parole.”). For state cases to the same effect,
see Broxton v. State, 909 S.W.2d 912, 918–19 (Tex. Crim. App.
1995) (stating that Simmons is not applicable to Texas’ capital
sentencing scheme); Smith, 898 S.W.2d at 850 n.17 (“The
underlying rationale for the Supreme Court in Simmons . . . is
inapplicable to Texas jurisprudence.”).
     73
          530 U.S. 156 (2000).
     74
      Id. at 167–68 (Kennedy, J.) (plurality); id. at 179–81
(O’Connor, J., concurring). The rationale of the Ramdass
dissenters does not apply here. Compare id. at 182 (Stevens, J.,
dissenting).
     75
      See Wheat, 238 F.3d at 361–62, where we stated that, given
our numerous cases holding that the rule of Simmons does not
apply to defendants who would be legally eligible for parole if
sentenced to life in prison, to accept the argument that Chappell
makes here would be to announce a new rule of constitutional law.
Such an announcement is, of course, barred by Teague v. Lane, 489
U.S. 288, 310 (1989).

                                  32
courts)   applied   current   federal   law   not   just   reasonably   but

correctly, Chappell cannot make a substantial showing of the denial

of a constitutional right.     We therefore deny his application for

a COA on this issue.76

G.   Denial of “Effective Right” to File a Pro Se Appellate Brief

     Lastly, Chappell contends that he was denied the effective

assistance of counsel and a fair appellate review of his sentence

when the State “effectively prevented him from preparing his

appellant’s brief by refusing to allow him access to the record in

a timely manner and refusing to allow [him] access to the [prison]

law library to research his cases.”       More specifically, Chappell

complains that he was denied (1) access to the trial record, (2)

access to the prison law library, and (3) adequate time to write

his brief on appeal.     The district court ruled that this claim is

procedurally barred, because it was never presented to the state

courts and thus has not been exhausted.             Again, as a cautious

alternative, the district court went on to rule that Chappell’s


     76
      Chappell directs us to Brown v. Texas, 522 U.S. 940
(1997), an opinion authored by Justice Stevens and joined by
Justices Souter, Ginsburg, and Breyer, on a denial of a petition
for writ of certiorari. That opinion remarked on “the need and
desirability of giving a parole instruction when the period of
parole is so long as to effectively keep a prisoner incarcerated
for the remainder of the violent period of his life.” Id. This
portion of Brown, however, is of no precedential value, as
Justice Stevens’s opinion was a dissent from the denial of
certiorari. Regardless of the merits of Justice Stevens’s
position, his dissent did not render the Texas habeas court’s
ruling on this issue an unreasonable application of federal law
as interpreted by the Supreme Court.

                                   33
claim is belied by the record and thus fails on the merits as well.

Chappell has not made the showing required for a COA to issue with

respect to either of these alternative holdings.

     1.      Procedure

     First, a review of Chappell’s state writ petition plainly

demonstrates that he never raised this claim in the state courts.

Instead,     Chappell    argued   that     the   Court    of   Criminal   Appeals

violated his right to counsel by “allowing [Chappell] to prepare

and file his own direct appeal to his conviction in contravention

to [sic] the Sixth and Fourteenth Amendments to the United States

Constitution in that [Chappell] clearly lacked the professional

competence necessary to effectively argue his own case.”77 Chappell

raised no allegations that he was prevented from gaining access to

the appellate record or to the prison law library.               Neither does he

mention the procedural bar in his COA application to this court,

let alone attempt to explain how the district court incorrectly

applied it.       We    hold   that   a    COA   cannot   be   granted    on   this

unexhausted and thus procedurally barred claim.

     2.      Merits

     The district court alternatively ruled that Chappell’s claim

fails on the merits.       He cannot make a substantial showing here,

because the district court was entirely correct, as a brief review

of the relevant events shows.


     77
          Chappell does not repeat this argument to us.

                                          34
     After Chappell’s court-appointed attorney filed a brief on

direct appeal, Chappell filed motions to strike the brief, dismiss

his counsel, and proceed pro se.          The Court of Criminal Appeals

remanded the case for a hearing on Chappell’s motion for self-

representation.

     At the hearing, the trial court admonished Chappell about the

dangers and disadvantages of self-representation. For example, the

trial court warned Chappell that “any other appellate lawyer[ ]

would have greater access to research materials than anyone that is

incarcerated,”    and   that   Chappell   faced   “many   limitations”    in

accessing “various documents and materials.”          Chappell answered,

“Yes, sir, I realize that.       It’s a definite handicap.”      Chappell

nevertheless insisted on exercising his state right to self-

representation on direct appeal in conscious disregard of the trial

court’s repeated warnings about proceeding pro se, particularly in

light of the seriousness of the punishment he was facing.                The

Court of Criminal Appeals subsequently granted Chappell’s motion

for self-representation, relieved Chappell’s appointed counsel of

any further duties, and ordered that the brief previously filed be

removed from the record.

     Our review of the record convinces us that the State did not

prevent Chappell from preparing his appellate brief in a timely

fashion.   Chappell may not have received the record as promptly as

he would have liked, but he was granted two extensions of time in

which to prepare his brief.     Chappell does not argue that the delay

                                    35
in receiving the record prevented him from raising any claims on

his direct appeal or harmed his defense in any other way; he

ultimately filed a 96-page brief incorporating the points made by

his former counsel and raising a total of seven points of error.

None of Chappell’s appellate filings were in fact rejected as

untimely.   On this point, Chappell thus has made no substantial

showing —— and cannot.

     Similarly, Chappell has not shown that he was denied adequate

access to the prison law library to prepare his appellate brief.

Chappell himself testified at the hearing that he had adequate

access to the law library through his fellow inmates: “To get

around this rule [a limit on the number of sources a prisoner could

request at one time], you get other people to order three law books

also . . . .   I can get as many as I need because I can get five

people, ten people, whatever I need, to order me three law books

each.”    Having insisted on proceeding pro se despite the trial

court’s lucid and fully adequate warnings about the potential risks

and hardships of self-representation, Chappell cannot now be heard

to complain of those same risks and hardships, or the untoward

results, if any, that they may have produced, as grounds for habeas

relief.

     Chappell summarizes this claim by urging that “the State

cannot constitutionally deprive the petitioner of the tools to

complete a successful brief of all the issues he should have been

given,” and that petitioners have a right to effective assistance

                                36
on direct appeal.    But, inasmuch as broad generalities never

suffice as a substantial showing of the denial of a constitutional

right, and because we find the district court’s determinations with

respect to the record, the library, and the appellate scheduling to

be beyond debate among reasonable jurists, we hold that a COA

should not issue on this ground either.

                               III.

                            CONCLUSION

     For all the foregoing reasons, Chappell’s application is

DENIED.




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