                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS            October 21, 2003
                           FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk
                           No. 03-20245


                     DOMINIQUE JEROME GREEN,

                                               Petitioner-Appellant,

                              versus

                           DOUG DRETKE,
         Director, Texas Department of Criminal Justice,
               Correctional Institutions Division,

                                               Respondent-Appellee.


          Appeal from the United States District Court
               for the Southern District of Texas
                          (H-01-CV-104)


Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     At issue is whether we will permit an appeal from a Texas

capital murder conviction, for which a death sentence was imposed.

Dominique Jerome Green must make the requisite “substantial showing

of the denial of a constitutional right”, 28 U.S.C. § 2253(c)(2),

in order to be granted a Certificate of Appealability (COA) from

the denial of his 28 U.S.C. § 2254 habeas petition.           The COA

request is DENIED.



     *
      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this opinion should not be published and is not precedent except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.
                                   I.

     On the evening of 13 October 1992, Green and three others

undertook a series of armed robberies, culminating in a murder on

the morning of 14 October.     Green was charged with capital murder;

a jury found him guilty.    Based on the jury’s answers to the three

sentencing special issues for capital murder under Texas law, the

death penalty was imposed.

     After the Texas Court of Criminal Appeals remanded to the

trial court for findings regarding the admission of some of Green’s

statements, Green v. State, 906 S.W.2d 937 (Tex. Crim. App. 1995),

Green’s conviction was affirmed, Green v. State, 934 S.W.2d 92

(Tex. Crim. App. 1996).      The Supreme Court of the United States

denied certiorari.     Green v. Texas, 520 U.S. 1200 (1997).

     In August 1997, Green filed for state habeas relief.                 In

February 2000,   the   trial   court    entered   findings   of   fact   and

conclusions of law, which were adopted by the Court of Criminal

Appeals.

     In January 2001, Green filed for federal habeas relief under

28 U.S.C. § 2254.    Through an extremely detailed and comprehensive

98-page opinion, the district court in March 2002 denied both the

petition and, sua sponte, a COA.

     Green moved under FED. R. CIV. P. 59(e) to alter or amend the

judgment.   By a similarly thorough 31-page order, that motion was

denied in February 2003.


                                   2
     The next month, subsequent to filing his notice of appeal,

Green moved the district court to reconsider the COA-denial, citing

the recently decided Miller-El v. Cockrell, 123 S. Ct. 1029 (2003).

A COA was again denied.

                                    II.

     Green filed for federal habeas relief after the 1996 effective

date of the Antiterrorism and Effective Death Penalty Act (AEDPA);

his application is therefore subject to the constraints found in

AEDPA.     Under AEDPA, we cannot consider Green’s appeal unless he

first obtains a COA.    28 U.S.C. § 2253(c)(2); e.g., Miller-El, 123

S. Ct. at 1034.

     To obtain that COA, Green must make “a substantial showing of

the denial of a constitutional right”.        28 U.S.C. § 2253(c)(2).

Restated, he must show “that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have

been resolved [by the district court] in a different manner or that

the issues presented were adequate to deserve encouragement to

proceed further”.      Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quotation marks omitted).     In other words, “we ... look to the

district    court’s   application    of   AEDPA   to   the   petitioner’s

constitutional claims and determine whether the [district] court’s

resolution was debatable among reasonable jurists”.            Miniel v.

Cockrell, 339 F.3d 331, 336 (5th Cir. 2003); see also Miller-El,

123 S. Ct. at 1039; Barraza v. Cockrell, 330 F.3d 349, 351 (5th


                                     3
Cir.), petition for cert. filed, No. 03-5645 (29 July 2003).                                At

the COA stage, we do not apply the deferential AEDPA standard of

review, found in 28 U.S.C. § 2254, for the merits of the habeas

petition.      See Miller-El, 123 S. Ct. at 1042 (“Before the issuance

of a COA, the Court of Appeals had no jurisdiction to resolve the

merits of petitioner’s constitutional claims.”).

       Green    seeks    a     COA    for    each        of    the   following      claims:

ineffective      assistance          of     counsel       at     the   penalty        phase;

constitutionally impermissible use of race at the guilt-innocence

and penalty phases; and denial of an opportunity for a “full and

fair hearing” at the state and federal habeas proceedings.                          None of

these claims makes the “substantial showing of the denial of a

constitutional right”, required by 28 U.S.C. § 2253(c)(2).

                                             A.

       In considering a COA request based on claimed ineffective

assistance of counsel (IAC), the well-known two-prong IAC standard

under Strickland v. Washington, 466 U.S. 668 (1984), forms the

backdrop.      On its merits, an IAC claim must demonstrate “that

counsel’s performance was both (1) constitutionally deficient; and

(2) resulted in actual prejudice”.                   Riley v. Cockrell, 339 F.3d

308,    315    (5th     Cir.    2003).            Only    objectively        unreasonable

performance     will     meet    the      first    prong;       only   a    showing    of    a

reasonable      probability      of       prejudice,          sufficient     to   undermine

confidence in the outcome, will meet the second.                           Id.


                                             4
                                           1.

      Green first claims insufficient investigation in developing

mitigating evidence.           He asserts that an inadequate investigation

led counsel to fail to present additional mitigating evidence

related to:        domestic abuse and neglect; positive elements in

Green’s past; and Green’s mental health.                     In addition, he claims

the mitigating evidence presented by counsel may have been harmful.

      The state habeas court found:                  witnesses called by Green’s

counsel testified about the conditions of Green’s family life,

including instances of severe abuse by his mother, which                          counsel

intended to present as part of their mitigation strategy; counsel

undertook investigations that did not lead to testimony, including

interviews with Green’s father (who said he would not be a good

witness for his son) and with a psychiatrist (who was not called as

a witness, in part because he referred to Green as a “sociopath”);

and   counsel     had   reasons    for     not       conducting      some    interviews,

believing    that,      because    Green       was    not    close    to    his   family,

extensive interviews of his relatives would not be productive; and,

concerning Green’s contention that his brother, Marlin, should have

been called as a witness, Green did not want him called.

      In   the    light   of    these    findings,          the   state     habeas   court

concluded:       counsel’s performance had not been deficient, having

adopted and carried out a strategy for the mitigation phase; and,

in the alternative, Green had not been prejudiced.


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     The district court recognized that this is not a case in which

counsel failed to present any mitigating evidence, but one in

which, as in Tucker v. Johnson, 242 F.3d 617, 622 (5th Cir.), cert.

denied, 533 U.S. 972 (2001), the “argument is that counsel should

have put on a stronger case in mitigation”.            Properly relying on

facts   found   by   the   state    habeas    court,   the   district   court

summarized the testimony elicited by counsel, as well as the

reasons certain interviews were not conducted, and reasons for not

calling   individuals      who     were    interviewed.       Against    this

information, the district court compared the information presented

in affidavits to the state habeas court.               Reviewing the facts

before it in the light of AEDPA’s standards, the district court

determined that the state habeas court’s decision of no deficient

performance was neither unreasonable nor contrary to federal law.

In addition, the district court ruled that affidavits of expert

mental health witnesses presented to it for the first time in the

Rule 59(e) motion were procedurally barred because they had not

been presented to the state habeas court.

     The district court’s application of AEDPA to this claim is not

debatable among reasonable jurists.           Green’s counsel called seven

witnesses, including: three officials testifying on Green’s behalf

who had dealt with him during his juvenile probation; a clinical

psychologist; and his mother.             Counsel also cross-examined all

except two of the State’s penalty phase witnesses.                Given the


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mitigating evidence introduced to show the difficulties of Green’s

domestic life, the evidence Green now claims counsel should have

introduced is mostly duplicative.

     As noted, Green asserts that his brother, Marlin, should have

been called to testify.         But, in addition to the fact that Green

instructed his attorneys not to call Marlin, the information that

would have been presented through Marlin’s proposed testimony about

the difficulties of Green’s domestic life was presented through

others.    The state habeas court found:              one probation officer

testified about Green’s “deplorable living conditions both at home

and in the rented storage unit, [and] his mother’s complete lack of

care”; that a psychiatrist testified that Green “had not been

raised    by   anyone,   that    his   mother   had    serious   psychiatric

problems”; that Green’s mother testified to an instance of abuse in

which she held Green’s hand “in a fire for so long that it required

hospital care”.

     The positive testimony that, according to Green, only Marlin

could have given — about instances in which Green cared for Marlin

— is insufficient to make the requisite showing for COA purposes.

                                       2.

     Green     complains   of    the   response   counsel     made   to   the

potentially damaging testimony by Green’s mother at the penalty

phase.    He contends counsel should have presented evidence both

relating to her mental illness and supplementing her testimony.

     The state habeas court’s findings of fact include:              counsel

                                       7
had a strategy for calling the mother; and counsel had interviewed

the mother’s doctor about her condition.                  That court concluded:

given the     purpose     of    the   testimony     and   its    intended    effect,

counsel’s performance had not been deficient; and Green had not

been prejudiced by the absence of evidence he feels should have

been presented.

     In reviewing these rulings, the district court noted the

irrelevance    of   additional        evidence    about    the   mother’s       mental

condition, because: her failings as a parent had been presented by

previous witnesses; and her behavior as a witness aided Green by

permitting    the    jury      to   witness   the   behavior      that    Green   had

experienced.        The   district     court     concluded,      under    the    AEDPA

standards, that the state habeas court’s decision was neither

unreasonable nor contrary to federal law.

     Reasonable jurists would agree with the district court’s

application of AEDPA.          The mother’s difficulties were made obvious

to the jury. When juxtaposed with evidence about her ill-treatment

of Green, they served as evidence a jury could understand without

expert testimony.           The additional information Green maintains

should have been presented does not create the requisite showing

for COA purposes.

                                         3.

     The third basis on which Green claims IAC is based on his

counsel’s     response to a letter placed in evidence.                   The letter,



                                         8
written post-arrest by Green while in jail awaiting trial, was

introduced by the State.           The portion of the letter challenged by

Green stated:      “I don’t care if a nigga with me or not ‘I forever

be a trigga happy nigga’”.              Green claims counsel should have put

this   letter    in     context    by    explaining    to   the   jury   that   the

challenged      words    were     in    quotation   marks   and   from    a   “rap”

recording. Had counsel done so, Green asserts, the jury could have

seen that the statement was not a literal prediction of future

events but instead a colloquialism.

       The state habeas court ruled:           counsel’s performance had not

been deficient because Green had failed to explain the phrase to

counsel; and Green had not been prejudiced because an explanation

of the phrase and its origins could have been more inflammatory

than the unexplained quote.             (The phrase is the title of a “rap”

recording    using      violent    language    about   an   armed   and   violent

robbery.)    Reviewing these findings under AEDPA’s standards, the

district court ruled that they were neither unreasonable nor

contrary to federal law.

       The district court’s ruling is not subject to debate among

reasonable jurists.        No reasonable jurist could debate the ruling

that counsel was not deficient for failing to identify the source

of the quote.

       Nor would a reasonable jurist debate the ruling that Green had

not made a showing of a likelihood that he was prejudiced by the



                                           9
absence of an explanation; such explanation could have involved

providing the jury with a series of violent images with which Green

was apparently familiar.              In addition, because the letter was in

evidence,      the    jury   could     see    the    quotation      marks       around    the

challenged language.

       Green     also    contends      that       effective     counsel         would    have

presented expert testimony to put the challenged phrase in a social

context, a context in which it served as an ironic refutation of

perceptions      of     violence.       Such      testimony     does      not    alter    our

conclusion that Green fails to make the requisite showing for a COA

on this claim.

                                             4.

       The   final      basis   on    which    Green     predicates        an    IAC    claim

meriting a COA is one of cumulative effect.                     Green contends that,

even    if     counsel’s     errors     do     not    merit     a   COA     when        viewed

individually, when viewed as a whole they serve to cast doubt on

counsel’s tactics for the penalty phase.

       This claim was not properly identified to us as a COA issue.

While Green does cite cases to support the claim that cumulative

error may be the basis for IAC, he makes no claims about his own

case which would permit anyone to conclude that there were such

cumulative errors here.          Rather than point to any facts in his own

case, he simply points to a grant of certiorari in another case as

sufficient      basis     for   our    granting      a   COA.       The    existence       of



                                             10
certiorari is insufficient to cause reasonable jurists to debate

the district court’s holding there was no IAC.

      Even assuming the issue has properly been presented, no

reasonable jurist could doubt the district court’s resolution of

this IAC claim.     The district court found no deficient performance

and no showing of prejudice.          “Meritless claims or claims that are

not prejudicial cannot be cumulated, regardless of the total number

raised.”      Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996),

cert. denied, 519 U.S. 1094 (1997).

                                        B.

      Green    requests     a   COA   on     two   related       claims    that   his

prosecution and sentence were affected by racial bias that denied

a constitutional right.

                                        1.

      Green notes that of the four individuals who participated in

the   events   on   13-14   October     1992,      the   three    who     are   black,

including Green, were prosecuted; the one white individual was not.

In addition to Green’s being convicted of capital murder, two

others pleaded guilty to armed robbery.

      To show selective prosecution, Green had to satisfy a two-part

test.   First, he had to “make out a prima facie showing that he has

been singled out for prosecution but others similarly situated of

a different race were not prosecuted”.              United States v. Webster,

162 F.3d 308, 333-34 (5th Cir. 1998), cert. denied, 528 U.S. 829


                                        11
(1999).      Second, he had to “demonstrate that the discriminatory

selection of him for prosecution is invidious or in bad faith, in

that   it    rests    on    such   impermissible       considerations     as    race,

religion,      or     the   desire    to     prevent    his   exercise     of    his

constitutional rights”.            Id. at 334.

       The state habeas court found that there was evidence to

support prosecution of the three black individuals, including

corroboration by co-conspirators, eyewitness identification, and

admissions of guilt.           It also found that the white individual

provided consistent testimony denying involvement in the crimes.

Although the state habeas court ruled that the claim had been

presented on direct appeal and, therefore, was not subject to

habeas      review,    it    ruled    in    the   alternative   that     all     four

individuals were treated in proportion to their culpability and the

strength of the evidence against them.

       The district court, reviewing the evidence before the state

habeas court, ruled that Green had not demonstrated that the white

individual was similarly situated to him.                Against Green’s claims

based on the circumstances of the incident, the district court

considered     the     prosecutor’s        affidavit   explaining   the    reasons

underlying the choice of who would be prosecuted.                   Finding that

Green had failed to make a prima facie case, the district court

determined, under AEDPA’s standards, that the state habeas court’s

decision was neither unreasonable nor contrary to federal law.


                                            12
      Like the district court, we do not reach the second prong of

the selective prosecution test because, for COA purposes, Green has

not   sufficiently     shown,   pursuant    to    the   first   prong,     that

reasonable jurists would debate the district court’s ruling that

similarly situated persons of a different race were not prosecuted.

Green has not shown that the state findings were clearly erroneous.

Instead, he has noted that the white individual was occasionally

referred to as a party or co-conspirator by the prosecution and

admitted to receiving stolen property.           Green relies on this in an

attempt to create an inference that the white individual was

similarly situated to the others involved.          This is in contrast to

the   deference   to   prosecutorial     discretion     generally,   and   the

clearly-expressed and well-supported affidavit by the prosecutor

specifically.

                                    2.

      In the sentencing phase, as earlier described, the prosecution

introduced the letter written by Green while in jail awaiting

trial.    In closing argument, the prosecutor asked the jury to

consider that Green had described himself as a “trigger happy

nigger” (instead of “nigga”, as used in the letter; emphasis

added).   Green seeks a COA on whether this claimed use of race by

the prosecution denied him equal protection of the law.

                                    a.




                                    13
     In his federal application, Green did not clearly delineate

two claims (sub-issues) of inflammatory speech:           the introduction

of the letter with the phrase “trigga happy nigga”; and the closing

argument in which the prosecutor said that Green had described

himself as a “trigger happy nigger”.        It is clear that the district

court only understood Green to be referring to one event, because

the district court only considered the language used in the letter.

It was only in Green’s reply to the response to his Rule 59(e)

motion that Green delineated two sub-issues for an equal protection

claim.    Needless to say, that is too late; we will not consider

this changed-language sub-issue.         See Lookingbill v. Cockrell, 293

F.3d 256, 264 (5th Cir. 2002), cert. denied, 537 U.S. 1116 (2003).

                                    b.

     The district court, recognizing that the equal protection

claim had been mingled with the IAC claim, did address the equal

protection implications of the letter.          For Green’s request for a

COA on this ground, he did not exhaust this claim in state court.

Neither   his   direct   appeal   nor     his   state   habeas   proceeding

challenged,     on   equal   protection     grounds,    the   prosecution’s

introduction of the letter (or use of the word “nigger” instead of

“nigga”); on direct appeal, he only challenged the prejudicial

value of the letter as an evidentiary concern.          See Green v. State,

934 S.W.2d 92, 103-05 (Tex. Crim. App. 1996).            Because Green did

not exhaust his claims in state court, he cannot now make a


                                    14
showing, for COA purposes, of such a deprivation in his federal

application. 28 U.S.C. § 2254(b)(1); Anderson v. Johnson, 338 F.3d

382, 386 (5th Cir. 2003) (noting that exhaustion requirement “is

not satisfied if the petitioner presents new legal theories or

factual claims in his federal habeas petition”).

                                c.

     In the alternative, Green does not make the requisite showing

for a COA on either of the two sub-issues concerning the challenged

words (in the letter and by the prosecutor) and equal protection.

                                C.

     Green makes two claims about the district court’s resolution

of procedural issues before it.      Each claim is related to his

maintaining he did not receive a “full and fair hearing” in state

court.

                                1.

     First, Green claims the district court was incorrect in

applying AEDPA’s presumption that findings of fact from the state

proceeding are correct.   See 28 U.S.C. § 2254(e)(1).   Green bases

this on the fact that his state habeas proceeding was a “paper

hearing” before a judge other than the one who presided at trial.

     As explained supra, our review is to determine whether jurists

of reason would debate the district court’s application of AEDPA.

Such jurists could not debate that the rule urged by Green is

precluded in this circuit.   Valdez v. Cockrell, 274 F.3d 941, 948


                                15
(5th Cir. 2001) (“[A] full and fair hearing is not a prerequisite

to the application of AEDPA’s deferential framework”.), cert.

denied, 537 U.S. 883 (2002).

     In any event, the hearing Green received for his state habeas

petition   was   sufficient.   In    August    1997,     Green   filed   that

petition, with 15 supporting documents purporting to be affidavits.

That the state court could not consider four of them (because they

were not signed) is not a flaw in the hearing accorded Green.

Rather, it demonstrates that the state court examined all the

documents before it.      (In addition, the court considered three

affidavits filed on behalf of the State, further reinforcing the

thoroughness of the hearing.)            In November 1999, Green filed

proposed findings of fact and conclusions of law with the state

court. Those proposed findings and conclusions were not adopted by

the state habeas court.    Green fails to make the requisite showing

for a COA concerning the adequacy of the state habeas proceeding.

                                    2.

     Second, Green contends that the district court improperly

denied his discovery requests.      Hill v. Johnson, 210 F.3d 481 (5th

Cir. 2000), cert. denied, 532 U.S. 1039 (2001), reviewed a COA

request on such a ground under a standard of whether the individual

seeking the COA had established “that the question whether the

district court abused its discretion in denying this request is

debatable among jurists of reason”.        Id. at 487.   Whether to permit


                                    16
discovery is committed to such discretion by Rule 6(a) of the Rules

Governing § 2254 Cases.

     Because     discovery    must   “relate      solely       to   a     specifically

alleged factual dispute, not to a general allegation”, Clark v.

Johnson, 202 F.3d 760, 767 (5th Cir.), cert. denied, 531 U.S. 831

(2000), reasonable jurists could not debate that the district court

acted   within   its    discretion    in     refusing     to     grant     discovery.

Green’s discovery requests did not make specific requests regarding

specific factual disputes.           It was, instead, a list of sources

where he could possibly find evidence to support his claims.                         The

district   court,      “especially    in     light   of    the      AEDPA’s       strict

standards”, ruled that none of the requests had merit.

     In addition to its original disposition, the district court

responded at length to Green’s discovery requests in denying his

Rule 59(e) motion.      The district court recognized that its ability

to permit discovery was limited by the “good cause” requirement

found in Rule 6 of the Rules Governing § 2254 Cases, and that this

“good cause” requirement was directed at the likelihood of success

in the habeas petition. “Good cause may be found when a petition

for habeas corpus relief establishes a prima facie claim for

relief.”    Murphy      v.   Johnson,      205   F.3d     809,      814    (5th    Cir.)

(quotation marks omitted), cert. denied, 531 U.S. 957 (2000).

     Against     this    background,       Green’s      discovery         requests     —

according to the district court, “a cursory motion asking for leave


                                        17
to take discovery of nearly every person involved in [Green’s]

trial” — do not satisfy the standard for a COA.

                              III.

     For the foregoing reasons, a COA is

                                                   DENIED.




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