           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         February 11, 2008

                                       No. 07-70035                   Charles R. Fulbruge III
                                                                              Clerk

DALE LEO BISHOP

                                                  Petitioner-Appellant
v.

CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:04-CV-319


Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellant Dale Leo Bishop requests a certificate of appealability
(“COA”). His request is denied.
                          I. FACTS AND PROCEEDINGS
       Bishop, a prisoner sentenced to death and currently in the custody of the
Mississippi Department of Corrections, filed this application for a COA after his




       *
        Pursuant to 5TH CIR. R. 47.5, this Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                        No. 07-70035

petition for a writ of habeas corpus and his request for a COA was denied by the
district court.
A. Factual History1
       On December 10, 1998, Bishop consumed alcohol at the apartment of
Ricky Myhand and Rachel Dobbs in Saltillo, Mississippi. Also present in the
home were Marcus James Gentry, Charlie Rakestraw, Jessie Johnson, and his
brother, Cory Johnson. After deciding to purchase more alcohol, Jessie Johnson,
Bishop, Myhand, and Gentry left the apartment in Gentry’s vehicle. Bishop,
who was a carpenter by trade, brought with him a 28-ounce Vaughn California
framing straight claw hammer, which he claimed he needed in order to work on
his truck.2 Upon reaching the store, they found it closed, and Gentry began
driving back to Myhand’s apartment. Jessie Johnson, who was seated in the
passenger’s seat, accused Gentry of “ratting” on his brother, Cory, regarding
incidents leading to grand larceny and burglary charges. Although Gentry
denied the accusations, Jessie struck Gentry between the eyes with Bishop’s
hammer.3 After the car coasted to a stop, Bishop, who was seated behind
Gentry, grabbed Gentry in a headlock and punched him while Jessie hit Gentry
again with the hammer. Gentry was moved to the passenger’s seat and Jessie
took control of the car, moving it down a dirt road. After Jessie stopped the car,
Gentry ran from the vehicle. Jessie told Bishop to get Gentry and bring him
back. Bishop complied, returning with Gentry approximately five minutes later,
and the men forced Gentry to his knees in front of the car.


       1
        The background facts are taken from the statement of facts in the Supreme Court of
Mississippi’s opinion in Bishop v. State, 812 So. 2d 934, 937–38 (Miss. 2002) (en banc), and
based upon a record review of the trial transcript.
       2
           He later admitted to police that the excuse was a pretense to bring the hammer into
the car.
       3
        In its opinion, the Supreme Court of Mississippi noted that a discrepancy existed as
to whether Jessie initially hit Gentry with his hands or with the hammer. Id. at 938 n.4.

                                               2
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      Bishop and Jessie kicked Gentry numerous times and Jessie struck Gentry
several times with the hammer. At some point during the beating, Bishop asked
Myhand to hold Gentry while Bishop retrieved more alcohol for himself and
Jessie. When the beating finally ended, Bishop dislodged his hammer from
Gentry’s throat, and Jessie and he drug Gentry’s body into nearby bushes.
Jessie, Bishop, and Myhand then left the scene to return to Myhand’s
apartment. On the way to the apartment, Jessie and Bishop talked about
finding a shovel and burying Gentry’s body.
      Arriving at Myhand’s apartment, Jessie and Bishop washed off and were
given clean clothes by Myhand. When all of the visitors had left the apartment,
Myhand and Dobbs reported the crime to police. Myhand took officers to the
murder site, where they recovered Gentry’s body. Gentry’s car was there and a
shovel was found nearby. It is assumed that Jessie and Bishop fled the scene
and hid in the woods when the police arrived.             The pair were finally
apprehended on December 13, 1998, and were indicted for capital murder during
the course of kidnapping. The two were tried separately.
      A forensic pathologist performed Gentry’s autopsy and testified at Bishop’s
trial that there were twenty-three injuries to Gentry’s head, neck, and hands,
and that these injuries were produced either by a blunt object with enough force
to break the skin or by a sharp-edged object such as a claw hammer. He also
testified that Gentry’s injuries to his hands, forearms, and fingers were
consistent with defensive wounds and that Gentry died of “cranial cerebral
trauma, secondary to blunt force trauma to the head,” and also from “lacerations,
tears of the voice box, with aspirations of blood.” Bishop did not testify at trial,
but the trial judge admitted into evidence his December 13, 1998 statement to
police.
      A jury found Bishop guilty of capital murder with an underlying felony of
kidnapping. He waived his right to sentencing by a jury, and Lee County Circuit


                                         3
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Judge Frank A. Russell sentenced him to death, finding beyond a reasonable
doubt that he contemplated the use of lethal force and that the crime was
especially heinous, atrocious, or cruel.
B. Procedural History
      Bishop pursued a direct appeal.          The Supreme Court of Mississippi
affirmed Bishop’s conviction and sentence in February 2002 and denied his
motion for rehearing in April 2002. See Bishop v. State, 812 So. 2d 934, 937
(Miss. 2002) (en banc). Bishop filed a petition for a writ of certiorari to the
United States Supreme Court which was denied on October 21, 2002. See
Bishop v. Mississippi, 537 U.S. 976 (2002). Bishop then returned to the Supreme
Court of Mississippi and filed an application for post-conviction habeas relief,
alleging eight grounds for relief: (1) ineffective assistance of counsel, (2) violation
of his Eighth Amendment rights by an unconstitutional imposition of the death
penalty, (3) unconstitutional errors and omissions in sentencing, (4) erroneous
jury instructions, (5) the failure of the court to classify him as mentally retarded
for purposes of exclusion from imposition of the death penalty, (6) erroneous
introduction of the 911 tape recording into evidence, (7) disproportionate
imposition of the death penalty, and (8) denial of constitutional rights due to the
cumulative effect of the errors at trial. The Supreme Court of Mississippi denied
his application for habeas relief in July 2004. See Bishop v. State, 882 So. 2d
135, 156 (Miss. 2004) (en banc). Bishop then appealed that denial of post-
conviction relief to the United States Supreme Court, which denied his petition
for a writ of certiorari. See Bishop v. Mississippi, 543 U.S. 1189 (2005).
      Bishop next sought relief by filing a petition for a writ of habeas corpus in
the United States District Court for the Northern District of Mississippi on
March 28, 2005, which he amended on October 16, 2005. He alleged thirteen
grounds for relief. The district court denied Bishop’s petition for habeas relief
and entered final judgment on August 16, 2007. See Bishop v. Epps, No. 1:04-

                                           4
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CV-319, 2007 WL 2363465, at *36 (N.D. Miss. Aug. 16, 2007). The district court
denied Bishop’s motion for issuance of a COA dated September 13, 2007, in
which he raised four claims, including (1) ineffective assistance of post-conviction
counsel, (2) ineffective assistance of trial counsel, (3) improper jury instruction,
and (4) improper waiver of jury sentencing. Bishop v. Epps, No. 1:04-CV-319,
2007 WL 2727228, at *1, 5 (N.D. Miss. Sept. 17, 2007). Bishop now moves for
issuance of a COA in this Court, raising the same claims he presented to the
district court.
                         II. STANDARD OF REVIEW
      Bishop filed his federal habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). Accordingly, the
petition is subject to AEDPA’s requirement that Bishop obtain a COA before an
appeal can be taken to this Court. See 28 U.S.C. § 2253(c); Miller-El v. Cockrell,
537 U.S. 322, 335–36 (2003). In determining whether a COA should be issued,
this Court limits its examination to a “threshold inquiry into the underlying
merit of [the petitioner’s] claims.” Id. at 327. “This threshold inquiry does not
require full consideration of the factual or legal bases adduced in support of the
claims. In fact, the statute forbids it.” Id. at 336.
      For claims that were rejected on the merits, a COA will be granted if the
petitioner makes “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). To
meet this standard, Bishop must demonstrate that “reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336 (internal
quotations omitted). The debatability of the underlying constitutional claim is
at issue, not the resolution of that debate. Id. at 342.



                                         5
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       For claims that have been rejected on procedural grounds, however, the
petitioner must show that “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Slack, 529 U.S. at 484.
                                   III. DISCUSSION
A. Ineffective Assistance of Post-Conviction Counsel4
       Section 2254 of Title 28 of the United States Code guarantees post-
conviction habeas relief only on the basis that a petitioner’s conviction or
sentence violates the Constitution or laws of the United States. Although
individual states, for independent reasons, may decide to create a right to
counsel for post-conviction review, the decision has no basis in the Constitution.
See, e.g., Jackson v. State, 732 So. 2d 187, 190–91 (Miss. 1999) (categorizing post-
conviction efforts as “an appendage, or part, of the death penalty appeal process
at the state level” and granting attorney compensation and litigation expenses
to petitioner, even though the grant is not required by the Constitution or by
Mississippi’s Uniform Post-Conviction Collateral Relief Act). But the Supreme
Court has “never held that prisoners have a constitutional right to counsel when
mounting collateral attacks upon their convictions.” Pennsylvania v. Finley, 481
U.S. 551, 555 (1987) (citing Johnson v. Avery, 393 U.S. 483, 488 (1969)). The
Finley Court wrote: “We think that since a defendant has no federal
constitutional right to counsel when pursuing a discretionary appeal on direct
review of his conviction, a fortiori, he has no such right when attacking a
conviction that has long since become final upon exhaustion of the appellate



       4
         Bishop’s claim relating to the qualifications and ineffectiveness of post-conviction
counsel can be found in Subpart G of “Claim IV Ineffective Assistance of Counsel,” in “Claim
V Ineffective Assistance of Post-Conviction Counsel,” and in an unnumbered section entitled
“Procedural Defaults.”

                                             6
                                  No. 07-70035

process.”   Id.   Because Bishop has no right to counsel in post-conviction
proceedings, he can allege no unconstitutional denial of the effective assistance
of post-conviction counsel. See Wainwright v. Torna, 455 U.S. 586, 587–88
(1982); see also 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of
counsel during Federal or State collateral post-conviction proceedings shall not
be a ground for relief in a proceeding arising under section 2254.”).
B. Ineffective Assistance of Trial Counsel
      Bishop argues that his trial counsel’s performance was deficient because
they failed to: (1) request psychiatric evaluations and testimony, (2) investigate
and present evidence of mitigating circumstances, (3) present a defense in the
guilt-innocence phase of the trial, and (4) prepare adequately for trial. In
deciding an ineffective-assistance-of-counsel claim, this Court first determines
whether the counsel’s performance was deficient. Turner v. Quarterman, 481
F.3d 292, 298 (5th Cir. 2007). “This requires [the defendant to show] that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. Second, this Court
determines whether the deficient performance prejudiced the defense. Id. “This
requires [the defendant to show] that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id.
      In sum, when determining whether to grant Bishop’s application for a
COA, this Court must determine whether reasonable jurists could debate
whether Bishop’s counsel’s performance was deficient, and, if so, whether that
performance prejudiced the defense. The performance of counsel is evaluated in
light of what was known to counsel at the time of his conduct, and the petitioner
bears the burden of demonstrating that the choices made were not within the
realm of trial strategy. See Strickland v. Washington, 466 U.S. 668, 689 (1984).
      In some circumstances, the ineffective assistance of counsel can constitute
cause sufficient to overcome a procedural default. See Coleman v. Thompson,

                                         7
                                  No. 07-70035

501 U.S. 722, 753–54 (1991). But a petitioner making this claim with the
purpose of having a substantive claim reviewed on its merits must ordinarily
have presented the ineffective-assistance-of-counsel claim as an independent
claim in state court before attempting to use it as cause to excuse a procedural
defect. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Therefore, if the
ineffective-assistance-of-counsel claim has been defaulted, cause and prejudice
must be established for the defaulted claim independently before the merits of
the underlying claim may be considered.
      1. Failure to request psychiatric evaluations and testimony
      Bishop contends that his counsel was ineffective in failing to investigate
Bishop’s mental status at trial and present mitigating evidence of his mental
problems. The trial court denied as untimely his request for additional funds for
independent psychiatric evaluation after an unfavorable examination at a state
hospital. Bishop appealed that denial, but he did not raise a claim for ineffective
assistance of counsel based on his attorney’s failure to obtain further
examination from mental health experts for the purpose of mitigation. Because
Bishop did not raise his ineffective-assistance-of-counsel claim before the state
court, the district court found his claim to be unexhausted for purposes of
collateral review.
      Because this claim was denied on procedural grounds, we may issue a
COA only if “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 ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).               Bishop
acknowledges, but provides no rebuttal to, the district court’s finding that the
ineffective-assistance-of-counsel claim is procedurally barred. We hold that
reasonable jurists would not debate the fact that this claim is procedurally
barred because it was never raised before the state court. Therefore, Bishop fails

                                         8
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to satisfy the second prong of our inquiry; we have no need to examine whether
reasonable jurists would debate whether he states a valid claim of a denial of a
constitutional right.
       2. Failure to investigate and present evidence of mitigating circumstances
       Bishop argues that we should issue a COA for the resolution of his claim
that counsel were ineffective in failing in their duty to investigate and present
mitigating evidence. He presented this claim of ineffective assistance to the
Supreme Court of Mississippi on post-conviction review, but that court rejected
the claim. The district court denied subsequent habeas relief, finding that the
decision by the Supreme Court of Mississippi was not unreasonable because
Bishop had instructed trial counsel not to present mitigating evidence if he were
convicted. Bishop now argues that he was “on board” with his counsel’s
requests for independent psychiatric experts. He contends that no mitigating
evidence was prepared because his motions for experts were denied as untimely.
Bishop believes that his counsel was not only deficient by filing the motions
untimely, but by failing to collect additional mitigating information for
presentation after the verdict of guilty. He rejects the district court’s finding
that he instructed counsel not to present mitigating information.
       A review of the record, however, plainly supports the findings by Supreme
Court of Mississippi and the district court. The record reveals that, against the
advice of counsel, Bishop voluntarily waived his right to a jury in the sentencing
phase, as well as his right to present mitigating evidence.5 Furthermore, he


       5
         The transcript shows that the judge asked Bishop various questions related to his
competency and his volition to waive his right to sentencing by a jury. After acknowledging
that he wished to waive this right, the judge allowed counsel to ask Bishop questions regarding
his decision as well. Bishop answered affirmatively in open court to the following questions
by his own counsel:
       “Mr. Bishop, have you been advised against doing this by [counsel]?”
       “Is this something that you have thought about thoroughly before today?”
       “And did you advise me of this earlier on in my representation of you?”
       “Do you understand that you might be giving up some issues that may come up

                                              9
                                          No. 07-70035

actually requested the death penalty after the jury found him guilty of capital
murder.6        When a petitioner instructs his counsel not to proffer any mitigating
evidence, a claim for failing to investigate further and present mitigating facts
cannot stand. See Schriro v. Landrigan, 127 S. Ct. 1933, 1941–42 (2007).
Because the district court reasonably concluded that Bishop had instructed his
counsel not to present mitigating evidence on his behalf, the district court did
not abuse its discretion in finding that Bishop could not meet statutory
requirements for granting habeas relief. Even if Bishop’s counsel uncovered
mitigating facts, the state court and the district court both reasonably
determined that he would have prohibited his counsel from presenting those
facts.       Therefore, we hold that reasonable jurists would not debate this
conclusion.
         3. Failure to present a defense in the guilt-innocence phase of the trial
         Bishop argues that his counsel was ineffective in presenting an adequate
defense because they failed to challenge the testimony of Myhand or to discover
timely evidence that Myhand’s clothes had been bloodied. Bishop contends that


         on the appeal of this case before the Mississippi Supreme Court by waiving this
         sentencing hearing before the jury?”
         “Is it your firm desire to do this?”
        In response to further questioning by the judge, Bishop then stated that he felt he had
been properly advised by counsel and that he was satisfied with their services. The State then
presented aggravating factors for consideration in sentencing. When asked to present
mitigating circumstances, Bishop’s counsel responded, “Your Honor, in accordance with our
client’s wishes, we offer nothing in mitigation.” The judge then asked Bishop directly if he had
any desire to offer mitigating facts or circumstances, but Bishop indicated that he had none.
         6
        Although Bishop chose not to present any mitigating evidence on his own behalf, he
made a few statements to the victim’s family and to the judge after the judge read the verdict:
         For what I did, I deserve to die. I ain’t gonna ask this Court to spare my life and
         let me grow old. I ain’t gonna do it. . . . These people here, some of them would
         like to kill me. They can’t. They don’t have that authority. . . . But [judge] you
         do. You’ve got that authority. . . . So I’m asking you to do what they can’t do,
         kill me for what I’ve done. I deserve it. I know it. I want you to sentence me
         to death. That’s it.

                                                10
                                  No. 07-70035

his counsel “was unprepared to cross-examine the State’s star witness [Myhand]
who had never been charged with any crime but readily admitted that [Bishop’s]
involvement in the crime was similar to his own involvement.” Bishop believes
that “[h]ad the incriminating evidence been timely produced, [he] could have
effectively used that information at trial, and more importantly, as well as at a
sentencing proceeding.” Bishop raised this issue in the form of an ineffective-
assistance-of-counsel claim before the Supreme Court of Mississippi, which noted
that Bishop had failed to allege any specific facts to show the ineffectiveness of
his counsel.
      A review of the record reveals that the State called every germane witness
to the case, with the exception of Bishop himself. Bishop’s counsel cross-
examined each witness, and specifically attempted to impeach Myhand’s
testimony and highlight the weaknesses of the State’s case in closing arguments,
including arguing that the elements of the crime had not been proven beyond a
reasonable doubt. Upon learning that Bishop did not intend to testify himself
or present a defense case-in-chief, the court questioned Bishop directly to
confirm that this was his decision. Based upon the record, we hold that Bishop
has not demonstrated any deficient performance by counsel, and even if counsel’s
performance was deficient, he has not demonstrated that he was prejudiced by
counsel’s performance because the only witness left to call was himself and he
had admitted his guilt to police upon questioning.
      Further, Bishop has labeled his claim as an ineffective-assistance-of-
counsel claim, not a claim relating to a discovery violation regarding his receipt
of the information that Myhand had blood on his clothes in connection with this
crime. We have held that in deciding an ineffective-assistance-of-counsel claim,
a court makes no decision on the merits of the underlying substantive claim. See
Steward v. Cain, 259 F.3d 374, 377–79 (5th Cir. 2001). Therefore, any claim



                                       11
                                   No. 07-70035

relating to underlying substantive merits, such as Bishop’s claim of discovery
violations, is not presently before this Court.
      4. Failure to prepare adequately for trial
      Bishop argues that we should issue a COA because his counsel were
ineffective for failure to prepare adequately for trial. Bishop, however, fails to
allege any specific facts or authority to support his claim of ineffective assistance
of counsel. Therefore, we hold that he has waived his claim. See FED. R. APP. P.
28(a)(9)(A) (requiring petitioner’s arguments to contain his “contentions and the
reasons for them, with citations to the authorities and parts of the record on
which the appellant relies”); Hughes v. Dretke, 412 F.3d 582, 597 (5th Cir. 2005)
(“In his petition to this Court, Petitioner merely lists his ineffective assistance
complaints in summary fashion, without discussing the legal and factual basis
for each complaint. In failing to brief his ineffective assistance of counsel
complaints adequately, Petitioner has waived those claims.”).
C. Improper Jury Instruction
       Bishop claims that the jury instruction regarding aiding and abetting
given at trial allowed him to be convicted of capital murder without the jury
finding proof of each element of the crime beyond a reasonable doubt. On direct
appeal, the Supreme Court of Mississippi found this claim to be barred because,
although Bishop objected to the jury instruction for aiding and abetting as
confusing, he did not object to the correctness of the instruction. Bishop v. State,
812 So. 2d 934, 942–44 (Miss. 2002) (en banc). The court nevertheless addressed
the merits of his claim and found the instruction to contain harmless error. Id.
at 944.
      The district court likewise determined that Bishop’s claim was
procedurally barred for failure to preserve it for appeal, but nevertheless
concluded that Bishop was not entitled to habeas relief. Bishop v. Epps, No.
1:04-CV-319, 2007 WL 2363465, at *22 (N.D. Miss. Aug. 16, 2007). “A deficient

                                         12
                                    No. 07-70035

jury charge is not grounds for federal habeas relief unless the instruction was,
in and of itself, violative of a constitutional right.” Id. (citing Estelle v. McGuire,
502 U.S. 62, 71–72 (1991)). The question in such a collateral proceeding is not
whether “the instruction is undesirable, erroneous, or even ‘universally
condemned.’” Cupp v. Naughten, 414 U.S. 141, 146 (1973). Rather, the question
is “whether the ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.” Id. at 147.
      Here, Bishop has not challenged the district court’s holding that the claim
was procedurally barred from consideration by this Court. For claims that have
been rejected on procedural grounds, the petitioner must show that “jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.”            Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Because jurists of reason would have to
agree with the district court’s procedural ruling, we cannot reach the merits of
Bishop’s claim, and we decline to issue a COA for this claim. Bishop fails to
meet the second prong of the inquiry and thus we need not examine whether he
has stated a violation of a constitutional right regarding the aiding-and-abetting
jury instruction.
D. Improper Waiver of Jury Sentencing
      Bishop lastly argues that he was improperly allowed to waive his right to
sentencing by a jury, claiming that Mississippi state law prohibits such a waiver.
Bishop raised this claim on direct appeal to the Supreme Court of Mississippi,
which held that the waiver of jury sentencing in a capital case was allowed, even
though no statutory provision expressly provided for such a procedure. Bishop
v. State, 812 So. 2d 934, 945 (Miss. 2002) (en banc). The district court also
denied habeas relief for this claim, stating that Bishop



                                          13
                                        No. 07-70035

       was fully informed of the consequences of waiving a jury sentencing,
       and it is equally clear that he was not deprived of any right to have
       the jury decide the sentencing issue. He affirmatively chose not to
       have a jury sentence him and may not now sustain his burden of
       proof on federal habeas review by suggesting that he never had the
       right to waive such sentencing.
Bishop, 2007 WL 2363465, at *26. Relying on Blakely v. Washington, 542 U.S.
296, 310 (2004), where the Supreme Court held that “[e]ven a defendant who
stands trial may consent to judicial factfinding as to sentence enhancements,”
the district court subsequently found that reasonable jurists would not debate
the fact that Bishop had the right to waive jury sentencing and denied a COA.
Bishop v. Epps, No. 1:04-CV-319, 2007 WL 2727228, at *5 (N.D. Miss. Sept. 17,
2007).
           The Supreme Court has long held that state courts “have the final
authority to interpret and, where they see fit, to reinterpret that State’s
legislation.”     Garner v. Louisiana, 368 U.S. 157, 169 (1961).                    Indeed, a
construction of a statute by a state’s highest court “puts these words in the
statute as definitely as if it had been so amended by the legislature.” Winters v.
New York, 333 U.S. 507, 514 (1948). We have held that “[s]tate courts are the
ultimate expositors of their own states’ laws, and federal courts entertaining
petitions for writs of habeas corpus are bound by the construction placed on a
States’s criminal statutes by the courts of that State except in extreme
circumstances.” Mendiola v. Estelle, 635 F.2d 487, 489 (5th Cir. 1981).7 Because
the Supreme Court of Mississippi’s interpretation of its death penalty statutes
does not fall into a limited exception for non-reviewability, we hold that Bishop’s
claim is not cognizable in habeas review and deny the issue of a COA.
                                   IV. CONCLUSION

       7
         The only time a federal court may review a state court’s interpretation of its statute
is when that interpretation is an “obvious subterfuge to evade consideration of a federal issue.”
Mullaney v. Wilbur, 421 U.S. 684, 691 n.11 (1975) (internal quotations omitted).

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                         No. 07-70035

Bishop’s application for a COA is DENIED.




                              15
