                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                     UNITED STATES COURT OF APPEALS
                              FIFTH CIRCUIT                         March 12, 2007

                                                              Charles R. Fulbruge III
                                                                      Clerk
                                No. 06-70019


                            JACK HARRY SMITH,

                                                    Petitioner-Appellant,

                                   versus

                  NATHANIEL QUARTERMAN, 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-04-CV-3562)


Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

     Pursuant to the Antiterrorism and Effective Death Penalty Act

(AEDPA) (effective 24 April 1996), the district court denied:             (1)

relief on Jack Harry Smith’s 28 U.S.C. § 2254 habeas application,

challenging his now almost 30-year-old state-court capital-murder

conviction;    and   (2)    a   Certificate    of   Appealability     (COA).

Therefore, Smith, a death-sentenced prisoner, seeks the required

COA from this court.       He requests a COA for two issues:         whether



     *
       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this opinion should not be published and is not precedent except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.
the district court erred by applying an AEDPA-deferential, rather

than a non-AEDPA-de novo, standard of review, to the state-habeas

court’s findings of fact and conclusions of law; and whether he

“suffered prejudicial representation at [his 1978 capital-murder]

trial respecting his ‘right to testify’”.     Because, under AEDPA,

Smith fails to show either that reasonable jurists could debate the

district court’s assessment of his constitutional claim or that the

issue presented by the claim is adequate to proceed further, a COA

is DENIED.

                                I.

     Smith’s   capital-murder   trial   was   held   in   July   1978,

approximately seven months after the 7 January 1978 killing of Roy

A. Deputter, during the aggravated robbery of a convenience store.

On direct appeal, Smith conceded the evidence is sufficient to

support his conviction.   Smith v. State of Texas, 676 S.W.2d 379,

382 (Tex. Crim. App. 1984) (en banc).     For example, Smith’s co-

defendant in the robbery, Jerome Hamilton, testified as follows.

     After obtaining a sawed-off shotgun and .38 caliber pistol

from acquaintances, Hamilton and Smith drove to a convenience

store, about noon, and waited outside for customers to leave.

After about 15 minutes, Smith, wearing a ski mask, and Hamilton,

wearing a stocking over his face, entered the store.       Smith went

behind the counter, put his pistol to the cashier’s abdomen, and




                                 2
demanded money.   As the cashier filled a bag with money, Hamilton

stood lookout, armed with the sawed-off shotgun.

     About this time, Roy Deputter entered through the store’s back

door.   He did so just as a customer was walking through the front

door, momentarily diverting Hamilton’s attention.                When Hamilton

turned back, Roy Deputter was aiming a pistol at him.                 Hamilton

ducked just as Roy Deputter fired at him.                Hamilton heard two

additional shots, then saw Roy Deputter stagger toward the front of

the store, fire an errant shot, and slump to the floor.                    The

cashier tossed the bag of money on the floor.            After fumbling the

bag, spilling and then picking up the money, Smith and Hamilton

fled, taking Roy Deputter’s pistol with them.

     Other    witnesses,    including      the     cashier,       corroborated

Hamilton’s account of the events.          Several witnesses identified

Smith, while others said he looked like one of the robbers.

Medical evidence showed Roy Deputter died from two gunshot wounds

consistent with a .38 caliber pistol.             On direct appeal, Smith

conceded the evidence is undisputed he fired the fatal shots.              Id.

     At the trial’s punishment phase, the State entered in evidence

documents    showing   Smith’s:     four     13    May    1955     guilty-plea

convictions (three for robbery by assault and one for theft); 7

April 1959 jury conviction of robbery by assault and sentence to

life in prison; and 1963 prison-escape attempt.           Smith objected to

the evidence    detailing   his   1963   escape    attempt    and    his   1955



                                    3
convictions because, he claimed, no attorney represented him.

Smith’s counsel did not call any punishment-phase witnesses.                  The

jury imposed a sentence of death.

     On direct appeal, the Texas Court of Criminal Appeals (TCCA)

affirmed Smith’s conviction and sentence. Smith v. State of Texas,

676 S.W.2d 379 (Tex. Crim. App. 1984).              The Supreme Court of the

United States denied review. Smith v. Texas, 471 U.S. 1061 (1985).

     Smith filed a state-habeas application in May and October

1985. As described below, it was not decided until almost 18 years

later.

     Following     an   evidentiary       hearing    on    2   June   1986,   his

application lay dormant until 22 April 1997, when Smith filed an

amended application through new counsel, incorporating the 1985

claims and adding, inter alia, claims for ineffective assistance of

counsel (IAC).      During this over-a-decade dormant period, as

discussed infra, in 1987, Smith was granted an out-of-time appeal

for his 1959 conviction; it was affirmed in 1988.

     On 16 May 2001, represented by the same counsel as in 1997,

Smith filed a “superseding” habeas application, reasserting all

prior claims and adding the Sixth Amendment claim for which Smith

seeks a COA here: trial counsel’s deficient performance concerning

his prior convictions (1955 and 1959) being introduced in evidence

prejudiced   his   right   to   testify     at   his      capital-murder   trial

(prejudice-to-testifying claim).           A claim raised in a 23 August


                                      4
2002 amendment to the 2001 superseding application was voluntarily

dismissed that fall.

     A hearing was held on 25 November 2002 by the state-habeas

trial court on the 2001 superseding application.           On 18 June 2003,

with extremely detailed findings of fact and conclusions of law,

the state-habeas trial court recommended the TCCA deny relief.

This recommendation concluded the prejudice-to-testifying claim

presented    for   the   first   time     in   Smith’s    2001    superseding

application “constitute[d] a subsequent application for writ of

habeas corpus”; and, therefore, the state-habeas trial court was

“required to send such claim to the [TCCA] to determine whether

such claim meets the ... exception requirements” of Texas Code of

Criminal Procedure article 11.071 § 5.            (Article 11.071 § 5(f)

provides:    “If an amended or supplemental application is not filed

within the time specified ... the court shall treat the application

as a subsequent application....”)         In the alternative, the state-

habeas trial court addressed the merits of this prejudice-to-

testifying   claim.      It   concluded   that   claim,    as    well   as   the

remaining claims, lacked merit.

     On 10 September 2003, approximately 18 years after Smith’s

original state-habeas application, the TCCA denied relief, but on

a different basis for one claim (raised in 1997) than recommended

by the state-habeas trial court.          Drawing on its suggestion that

article 11.071 § 5 might procedurally bar Smith’s 2001 prejudice-


                                     5
to-testifying claim, the TCCA dismissed that claim “for failing to

satisfy the requirements of Art. 11.071, Sec. 5”.   Ex parte Smith,

No. 8.315-06 (Tex. Crim. App. 10 Sept. 2003) (unpublished).   In the

same manner, it dismissed an IAC claim presented for the first time

in the 1997 amended application, concerning the admission at

sentencing of evidence of Smith’s five prior convictions.        The

remaining seven claims were summarily denied as meritless, “based

on the [state-habeas] trial court’s findings and conclusions”. Id.

     Smith filed a federal habeas application under 28 U.S.C. §

2254 on 13 September 2004, raising, inter alia, the IAC-at-trial

claims concerning counsel’s asserted: (1) inadequate objections to

evidence concerning Smith’s prior convictions; and (2) prejudice to

his right to testify.   Through a 28 March 2006 summary judgment,

the district court:     denied relief on the merits for Smith’s

claims; and, sua sponte, denied a COA on all claims.          In its

detailed, comprehensive, and extremely well-reasoned opinion, the

district court, inter alia, refused to apply the procedural bar

relied on by the TCCA for two claims, including the prejudice-to-

testifying claim for which Smith now seeks a COA.   Smith v. Dretke,

No. H-04-CV-3562, 2006 WL 801114 (S.D. Tex. 28 March 2006).

                               II.

     Smith requests this court to grant a COA on two issues:     (1)

whether the district court erred by employing an AEDPA-deferential,

rather than a non-AEDPA-de novo, standard of review to the state-


                                6
habeas court’s findings and conclusions; and (2) whether Smith’s

counsel’s claimed deficient performance at the punishment phase of

his capital-murder trial prejudiced his Sixth Amendment right to

testify.

     An appeal from the denial of § 2254 habeas relief may not be

taken unless a COA is granted, pursuant to the requirements imposed

by AEDPA.    See 28 U.S.C. § 2253(c).       “Under AEDPA, a COA may not

issue unless ‘the applicant has made a substantial showing of the

denial of a constitutional right’”.         Slack v. McDaniel, 529 U.S.

473, 483 (2000) (quoting 28 U.S.C. § 2253(c)) (emphasis added). To

satisfy this threshold requirement to appeal a habeas claim’s being

rejected, as here, on its merits, a petitioner must show “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’”.    Id. at 484 (quoting Barefoot v. Estelle, 463 U.S. 880,

893 n.4 (1983)).     “The petitioner must demonstrate that reasonable

jurists    would    find   the   district   court’s    assessment    of   the

constitutional claim[] debatable or wrong.”           Id. (emphasis added).

                                      A.

     Concerning the requested COA for Smith’s claim that the

district court erred in applying AEDPA’s deferential standard of

review, “[a] federal court’s collateral review of a state-court

decision must be consistent with the respect due state courts in


                                       7
our federal system”.              Miller-El v. Cockrell, 537 U.S. 322, 340

(2003).        Therefore, when a petitioner seeks federal habeas relief

from   a       state-court      decision,   the    federal   court    reviews   that

decision under AEDPA’s deferential reasonableness inquiry, not

under a de novo standard of review.                See 28 U.S.C. § 2254(d); see

also Williams v. Taylor, 529 U.S. 362, 404-405 (2000).

       Needless to say, our COA inquiry is not a ruling on the merits

of the issue for which a COA is requested.                     But, in deciding

whether        to   grant   a   COA,   we   must   obviously   make    a    threshold

examination of the district court’s decision made pursuant to

AEDPA.     E.g., Henderson v. Quarterman, 460 F.3d 654, 659 (5th Cir.

2006).         In that regard, AEDPA permits relief only on two bases.

       First, relief is permitted if the state-court decision was

contrary to, or an unreasonable application of, federal law.                       Id.;

see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (“[Section]

2254(d)’s highly deferential standard [of review] for evaluating

state-court rulings ... demands that state-court decisions be given

the benefit of the doubt”.             (Internal quotation marks omitted.)).

A legal conclusion is “contrary to” federal law if it is “opposite

to that reached by [the Supreme] Court on a question of law” or

“decides a case differently than [the Supreme] Court has on a set

of materially indistinguishable facts”. Williams, 529 U.S. at 412-

13.        A    decision     unreasonably       applies   federal     law   when    it

“identifies the correct governing legal rule from [Supreme Court]

                                            8
cases but unreasonably applies it to the facts of the particular

state prisoner’s case”.   Id. at 407; see also Woodford, 537 U.S. at

25 (“An ‘unreasonable application of federal law is different from

an incorrect application of federal law’”, the former being a more

deferential standard. (quoting Williams, 529 U.S. at 410)(emphasis

in original)).

     The other basis for relief under AEDPA concerns state-court

fact finding.     Under AEDPA, “[f]actual determinations by state

courts are presumed correct absent clear and convincing evidence to

the contrary”.     Miller-El, 537 U.S. at 340 (citing 28 U.S.C. §

2254(e)(1)).     “[A] decision adjudicated on the merits in a state

court and based on a factual determination will not be overturned

on factual grounds unless objectively unreasonable in [the] light

of the evidence presented in the state court proceeding”.   Id.; 28

U.S.C. § 2254(d)(2).

     As noted, the district court denied relief on the merits, not

on the mixture of procedural and merits grounds utilized by the

TCCA.   For the prejudice-to-testifying claim for which Smith now

seeks a COA, the district court refused to defer to the TCCA’s

Article-11.071-procedural dismissal of that claim, first raised in

2001, because, inter alia, Article 11.071 (effective 1 September

1995) did not retroactively apply to Smith’s original 1985 state-

habeas application, which his 1997 and 2001 applications amended,

but did not replace.

                                  9
     In his brief in support of his COA requests, Smith devotes two

very summary paragraphs to his COA request for his claim that the

district court should have reviewed his prejudice-to-testifying

claim under a de novo, rather than AEDPA’s deferential, standard

of review. His underlying standard-of-review claim is based on the

TCCA’s not adopting the state-habeas trial court’s findings and

conclusions for its alternative merits decision on the prejudice-

to-testifying claim.      As discussed, the TCCA did not do so because

it dismissed that, and another, claim on a procedural basis.                It

did adopt the findings and conclusions for the other seven claims.

     Arguably, Smith has not adequately briefed this COA request.

Moreover, although Smith requests a COA on this standard-of-review

claim, he failed first to do so in district court.              As noted, in

denying habeas relief, the district court sua sponte denied a COA

for the claims in Smith’s federal application.                Smith did not

subsequently file a COA with the district court on his standard-of-

review   claim,   which   arose   out   of    the   court’s   denial   of   his

prejudice-to-testifying claim.      We will not consider a COA request

presented here for the first time.           Muniz v. Johnson, 114 F.3d 43,

45 (5th Cir. 1997).

     In any event, we question whether a COA would be required for

a challenge to the standard of review employed by the district

court.   It does not appear to be a constitutional issue for which

we can grant a COA, as emphasized supra.            Likewise, it was not one


                                    10
of the claims raised in Smith’s federal application.             No authority

need be cited for the rule that habeas claims cannot be raised for

the first time on appeal.

     Instead, the standard-of-review issue seems more properly

considered as a sub-issue for whether to grant a COA on the

prejudice-to-testifying claim. We need not decide these questions,

however, because, as discussed infra, the primary basis on which

the district court denied the prejudice-to-testifying claim was not

based on its review of the state-habeas trial court’s findings and

conclusions,   but   was   instead    based     on   the    district    court’s

independent analysis. Accordingly, assuming arguendo the standard-

of-review issue requires a COA, Smith’s COA request is denied for

that issue.

                                      B.

     The constitutional claim for which Smith seeks a COA is for

IAC prejudice-to-testifying.      In the state-habeas court, under the

well-established two-prong test for IAC, Smith was required to show

deficient   performance    by   his   counsel    that      prejudiced   Smith’s

defense at trial or sentencing. Strickland v. Washington, 466 U.S.

668, 687 (1984).     In state-habeas court, demonstrating deficient

performance at the capital-murder trial “require[d] showing that

counsel made errors [at trial] so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment”. Id. To meet the second requirement, showing prejudice


                                      11
at the capital-murder trial, Smith was required in state-habeas

court to show “that counsel’s errors [at trial] were so serious as

to deprive [Smith] of a fair trial, a trial whose result is

reliable”.    Id.

     As discussed supra, under AEDPA, the district court reviewed

the state-habeas court’s IAC decision only for whether it is

reasonable.    And, our above-discussed COA standard is whether

reasonable jurists would disagree with the district court’s AEDPA-

driven decision.

     Smith contends he received IAC because his trial attorney

caused him to waive his right to testify by failing to investigate

Smith’s prior convictions in 1955 and 1959.     See, e.g., United

States v. Teague, 953 F.2d 1525, 1534 (11th Cir. 1992) (“Because it

is primarily the responsibility of defense counsel to advise the

defendant of his right to testify ... the appropriate vehicle for

claims that the defendant’s right to testify was violated by

defense counsel is a claim of ineffective assistance of counsel

under Strickland”.).   According to Smith, had his capital-murder

trial counsel investigated his 1959 conviction, he would have

discovered Smith was denied representation on appeal in that case.

Armed with this information, according to Smith, his trial counsel

should then have made “[a]n appropriate objection [which] would

have caused exclusion [of the 1959 conviction], allowing [Smith] to

testify without fear of impeachment by way of prior conviction”,


                                12
his four 1955 convictions being “well beyond the 10-year rule of

thumb for impeachment in his [capital-murder] 1978 trial”.              By

excluding the admission of these prior convictions, thus allowing

him to testify, Smith contends a different result would have been

reached.

     Smith, however, fails in his brief here to support these

contentions.    Instead, he repeats the assertions made to the

district court — i.e., had his capital-murder trial attorney

discovered the invalidity in his prior convictions, he could have

testified and altered the result of his trial and/or sentencing.

Smith does not point to any evidence or make any legal argument

showing the district court’s decision on this claim is debatable

among reasonable jurists.

     For Smith’s IAC prejudice-to-testifying claim, the district

court held, pursuant to AEDPA:        Smith neither presented clear and

convincing   evidence   to    rebut   the   presumption   of   correctness

accorded a state-habeas court’s factual determinations nor showed

the state-habeas court’s legal conclusions were contrary to, or an

unreasonable application of, federal law.          Reviewing the state

trial and habeas records, the district court found that the form

judgments for Smith’s 1955 convictions stated Smith “appeared in

person and by Counsel”.      Smith admitted an attorney helped him sign

the waiver form, but maintained the attorney “never discussed the

facts or law with him, and never advised him of the rights he would


                                      13
surrender   by   pleading        guilty”.      Thus,    Smith   insisted    this

“constructive    denial     of     counsel”    should    have   precluded    the

admission of his 1955 convictions.

     The district court acknowledged that, if Smith showed he had

to “navigate a critical stage of the [1955] proceedings against him

without the aid of an attorney dedicated to the protection of his

... rights”, Childress v. Johnson, 103 F.3d 1221, 1229 (5th Cir.

1997) (internal quotation marks omitted), that would fall short of

the Sixth Amendment standard made retroactively applicable to state

courts through Gideon v. Wainwright, 372 U.S. 335 (1963).                  Smith,

2006 WL 801114, at *11. See also Beard v. Banks, 542 U.S. 406, 417

(2004) (stating the Supreme Court has “repeatedly referred” to

Gideon as an exception to non-retroactivity requirements).

     Contrary to Smith’s contentions, however, the district court

found Smith’s capital-murder trial attorney did object to the

admission of his 1955 convictions on the grounds Smith was deprived

of counsel in those matters.                The capital-murder trial court

overruled this objection.         The district court reasoned:       “Even had

trial counsel objected more strenuously, Smith has not shown that

he was actually or constructively without counsel at his 1955

guilty-plea hearing”.       Smith, 2006 WL 801114, at *12.

     Along that line, and not deciding for present purposes whether

the district court applied the correct standard of review to the

state-habeas trial court’s findings, that state court found the


                                       14
1955 judgments showed Smith was represented by counsel in his

guilty pleas and rejected Smith’s “constructive denial of counsel”

contentions.    Moreover, notwithstanding any invalidity in Smith’s

1955   convictions,    that   court   concluded    the     State    could   have

elicited testimony describing those crimes. Thus, the state-habeas

trial court concluded Smith failed to meet both Strickland prongs:

deficient performance and prejudice.         Because, contrary to AEDPA,

Smith did not present clear and convincing evidence to rebut the

presumption of correctness accorded the state-habeas trial court’s

factual determinations, Miller-El, 537 U.S. at 340 (citing 28

U.S.C. § 2254(e)(1)), the district court did not hold unreasonable

the state-habeas trial court’s determination that Smith was not

unrepresented at his 1955 guilty-plea hearing.

       Likewise, regarding the admission of Smith’s 1959 conviction

at his capital-murder sentencing, the state-habeas trial court

found that Smith was indisputably without assistance of counsel on

direct appeal (in clear violation of the Sixth Amendment; in that

regard, he was granted an out-of-time appeal in 1987, with his

conviction’s being affirmed in 1988, ten years after his 1978

murder-trial   and    15   years   before   the   denial    of     state-habeas

relief).    Nevertheless, the state-habeas trial court found the

State “could have presented witnesses to testify at the punishment

phase of the [capital-murder] trial regarding the details of the




                                      15
[1959] offense”. Therefore, the state-habeas trial court concluded

Smith failed to show Strickland prejudice.

     Although the district court did not agree that the State

necessarily     could   have    produced    witnesses    to   testify   to   the

underlying facts of the 1959 offense, it did not hold unreasonable

the state-habeas court’s conclusion that Smith failed to show IAC

prejudice:

           Even excluding the 1959 conviction, the jury
           still   had   before   it   his   [four]   1955
           convictions and his [1963] escape attempt.
           The jury could also consider the brutal nature
           of    Smith’s    [capital-murder]    case    in
           determining the punishment verdict.... The
           defense presented no mitigating evidence, and
           Smith points to no such evidence that counsel
           should have, but did not, present.        While
           certainly a factor deserving consideration,
           the 1959 conviction was not the lynchpin
           holding the prosecution’s case together.

Smith,   2006    WL   801114,    at   *15   (internal    citation   omitted).

Applying AEDPA’s deferential standard, Woodford, 537 U.S. at 24

(citing 28 U.S.C. § 2254(d)), the district court held Smith failed

to show the state-habeas court’s conclusion was contrary to, or an

unreasonable application of, Strickland’s prejudice prong.

     As discussed supra, we need not decide whether the district

court applied the wrong standard of review for the state-habeas

trial court’s findings and conclusions.            This is because of the

following holding by the district court:                that Smith failed to

provide support in district court for his claim that counsel’s

deficient performance prejudiced his right to testify.

                                       16
          Smith does not provide this Court with any
          competent support for his contention that he
          wanted to testify at [his capital-murder]
          trial.     Smith provides no affidavit or
          similarly verified document attesting to his
          desire   to   testify  on   his   own  behalf.
          Importantly, Smith fails to provide any
          indication of what his testimony would have
          been had he testified. Smith asks this Court
          to grant habeas relief on the simple,
          unsupported allegation that he would have
          testified, without regard to the substance of
          that   testimony.      Smith’s   argumentation
          deprives this Court of the ability to consider
          the impact of his putative testimony on his
          trial. Smith’s speculative assertions fail to
          demonstrate the existence of a constitutional
          violation.    The state court’s rejection of
          this claim was not contrary to, or an
          unreasonable application of, federal law. See
          28 U.S.C. § 2254(d)(1).

Smith, 2006 WL 801114, at *15 (emphasis added).

     On this basis alone, reasonable jurists would not disagree

with the district court’s denial of relief for Smith’s prejudice-

to-testifying claim.   Nor does the issue presented by that claim

justify proceeding further.

                               III.

     For the foregoing reasons, a COA is

                                                        DENIED.




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