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

                                                 FILED
                                                                            April 13, 2009

                                       No. 08-70009                    Charles R. Fulbruge III
                                                                               Clerk

KEVIN SCOTT VARGA

                                                   Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                   Respondent-Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                   (05-CV-376)


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Kevin Scott Varga was convicted of capital murder and sentenced to death
for killing David Logie in the course of committing robbery or for killing David
Logie and David L. McCoy in the same criminal transaction. He was denied
habeas relief in state habeas court and in federal district court and now seeks
a Certificate of Appealability (“COA”) authorizing him to appeal the district
court’s denial of relief for four claims:


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-70009

      (1) that he was denied his right to trial by an impartial jury and due
process by the exclusion of a qualified venire member for cause on the basis of
her conscientious scruples against the death penalty;
      (2) that his counsel was ineffective in not raising this exclusion on appeal;
      (3) that he was denied due process by the introduction of impermissible
irrelevant victim impact or rebuttal evidence at the punishment phase; and
      (4) that he was denied his right to trial by an impartial jury because the
jury was not required to find beyond a reasonable doubt that there were no
mitigating circumstances sufficient to warrant a sentence of life imprisonment
instead of death.
      Because we conclude that Varga has not made a substantial showing of a
denial of a constitutional right, we deny the COA as to all four claims.


                              I. BACKGROUND
      Petitioner Kevin Scott Varga was convicted of capital murder and
sentenced to death for killing two men as part of an extortion scheme. Most of
the evidence leading to his conviction came from the testimony of his seventeen-
year-old co-defendant, Venus Anderson, who was granted limited immunity from
prosecution in exchange for her testimony. According to Anderson, she and
Varga, along with another man and woman, Billy Galloway and Deanee Ann
Bayless, decided to drive together from South Dakota to Mexico. Varga
suggested that they “roll” men along the way to make money: his plan was that
Anderson would pick up a man at a bar and bring him back to a hotel, where
Varga would be hiding. Varga would then come out of hiding and blackmail the
men for money. Anderson agreed to this plan.
      In Wichita, Kansas, Anderson, Bayless, and Galloway picked up David
McCoy at a bar and brought him back to the hotel room. Varga, who had been
hiding in the bathroom, entered the room with a metal pole. Anderson left the

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room but testified to hearing thuds and hearing Galloway yell “that’s enough.”
When Anderson returned McCoy was lying on the floor. The foursome wrapped
McCoy’s body in blankets and loaded it into their car, which they abandoned a
few blocks away after it broke down. The body was found a few days later. At
Varga’s trial the medical examiner testified that McCoy suffered severe skull
fractures; the cause of death was determined to be blunt force trauma to the
head.
        After abandoning the car the foursome continued south in McCoy’s car. In
Greenville, Texas, Anderson and Bayless picked up David Logie at a Holiday
Inn. Anderson and Bayless left with Logie in his car, with Bayless at the wheel,
and Galloway and Varga followed them. Bayless drove to a deserted area of
town, and Bayless and Logie got out of the car. Anderson testified that a few
minutes later she heard Galloway’s voice and saw him punching Logie. After
several minutes Varga appeared from behind the car and handed Galloway an
object, which Galloway used to strike Logie. A police officer testified at trial that
a ball-peen hammer and pieces of a bloody tree limb were found near the body.
The foursome took Logie’s wallet and dragged his body into the woods, and set
fire to McCoy’s car. The medical examiner testified that Logie suffered extensive
injuries to the head region, including multiple fractures and lacerations, that
were consistent with having been struck with a hammer and/or a tree limb. The
cause of death was determined to be blunt force injuries to the head.
        The foursome continued south in Logie’s car to San Antonio, Texas, where
Anderson and Bayless went shopping using Logie’s credit cards; Varga and
Galloway went to a strip club. When Anderson and Bayless left the mall they
were pulled over by the police, whereupon Anderson confessed to the murders
and surrounding events. The police subsequently arrested Galloway and Varga.
        Varga was convicted of capital murder in November 2000 under Tex. Penal
Code Ann. § 19.03(a). During the punishment phase the prosecution presented

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evidence that Varga and two other inmates had attempted an escape while
incarcerated at the Hunt County Sheriff’s Department because, according to
Varga, “I had to try. I have nothing to lose.” The prosecution also presented
evidence that Varga’s ex-wife had made several 911 calls in which she accused
Varga of domestic abuse, and that an officer responding to one of the calls saw
Varga strike someone twice in the head. Another police officer testified that,
upon examining the house where Varga lived before leaving town and
committing the murders, the officer found the words “death is coming” written
in mustard on the bottom of the sink, as well as Varga’s ex-wife’s driver’s license
with the photo scratched out and a copy of a protective order on which someone
had scrawled “fuck you.” Finally, the prosecution presented evidence that while
previously incarcerated at a South Dakota prison Varga was classified as among
the most aggressive prisoners and a prison official testified that he preyed on
weaker inmates and was a constant threat.
      Varga’s conviction and sentence were affirmed on direct appeal by the
Texas Court of Criminal Appeals. Varga v. State, No. 73, 990 (Tex. Crim. App.
2003). Varga did not petition the Supreme Court for certiorari review. While his
direct appeal was pending, Varga filed a state habeas petition, which was
denied. Ex parte Varga, No. 59, 471-01 (Tex. Crim. App. 2004). Varga then filed
a habeas petition in federal district court, which was denied. The district court
also denied a COA. Varga now appeals the denial of the COA.


                         II. STANDARD OF REVIEW
      Federal habeas petitioners are not entitled to an appeal from a federal
district court’s denial of habeas relief as of right. See 28. U.S.C. § 2253(c)(1). To
quality for a COA, a petitioner must make a “substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). A COA is appropriate when
“reasonable jurists could debate whether (or for that matter, agree that) the

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petition should have been resolved 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) (internal quotation marks omitted). The
question in considering whether to grant a COA is the “debatability of the
underlying constitutional claim, not the resolution of that debate.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). Where a district court has denied claims on
procedural grounds, a COA is warranted only when “jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a
constitutional right and . . . jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack, 529 U.S. at 484
(emphasis added).
      Under the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA), petitioners appealing a state court capital punishment sentence in
federal court must show that the state court’s adjudication was either “contrary
to, or involved an unreasonable application of, clearly established federal law,
as determined by the Supreme Court of the United States” or “resulted in a
decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). An
adjudication is contrary to established federal law when it “applies a rule that
contradicts the governing law set forth in [Supreme Court] cases,” or “confronts
a set of facts that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a result different from [that]
precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). State court factual
findings are entitled to a presumption of correctness under the statute. 28 U.S.C.
§ 2254(e)(1).
                                 III. ANALYSIS
Claim One:



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      Varga’s first claim is that he was denied an impartial jury and due process
in violation of the Sixth and Fourteenth Amendments because a qualified venire
member named Harvetta Machell Robertson was excluded from jury service on
account of what every court to consider the question has deemed the basis of her
vacillating answers and bias against the death penalty, but what Varga argues
were actually permissible conscientious scruples. During extended questioning
by both the prosecution and the defense, Robertson indicated that she had strong
religious objections to the death penalty – in explaining her views she said “the
end result is the same whether it’s someone taking a gun or a knife or if it’s
someone who has been injected with – you know, because of a crime that they’ve
been committed [sic], the end result is a life that’s been taken,” and when asked
“You have a moral belief that man should never take another man’s life; that’s
reserved for God, right?” she said “Yes.” She indicated at several points that she
would “have a very difficult time” voting for the death penalty.
      Robertson testified multiple times that she believed she could follow the
law as she was charged, and she testified that she would not make up mitigating
circumstances or automatically return a life sentence even if the government
proved its case. But she also testified that she believed her opposition to the
death penalty “maybe would influence even to this point the way that I hear
some things that are presented even before you get to the sentencing stage,” and
that she did not know “how to set aside [her] personal beliefs.” At one point,
during a discussion about whether she thought a death sentence “should”
happen, she was asked “In this circumstance . . . do you think that you could
ever, ever give the death penalty?” and she answered “No.” The record does not
clearly reflect what “circumstances” Robertson and counsel understood
themselves to be discussing. At the end of counsels’ questioning, the district
court judge asked Robertson: “Can you set aside your strong feelings against the



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death penalty and answer the questions according to the evidence?” Robertson
replied: “I can’t say that I would be able to . . . put . . . my feelings about it aside.”
      Varga raised this claim for the first time in his state habeas appeal. The
state district court found that Robertson was “unclear about her ability to follow
the law and not her personal religious beliefs,” and that her “bias against the
death penalty would substantially impair her ability to carry out the oath and
instructions in accordance with the law, and . . . that there was sufficient bias
to strike [her] for cause.” The Texas Court of Criminal Appeals adopted the
findings and conclusions of the district court judge and denied habeas relief. The
federal district court found that the state court’s conclusions were not
unreasonable applications of the law because Robertson, while stating that she
could follow the law, also stated she could not give the death penalty and did not
know how to put aside her beliefs. According to the district court, “the record
before this Court supports the state habeas court’s conclusion that Ms.
Robertson’s views against capital punishment would either prevent or
substantially impair her ability to perform her duties as a juror with respect to
the instructions and her oath.” Thus, the district court held, Varga’s
constitutional rights were not violated by her exclusion for cause. We agree.
      The Sixth Amendment right to a fair trial guarantees an impartial jury.
Neb. Press Ass’n v. Stuart, 427 U.S. 539, 551 (1976). In Witherspoon v. Illinois,
391 U.S. 510 (1968), the Supreme Court held that the Sixth Amendment is
violated where veniremen are excluded “simply because they voice[] general
objections to the death penalty or express[] conscientious or religious scruples
against its infliction” if such veniremen can still follow the law, id. at 522. A
prospective juror thus cannot be challenged for cause because of his opposition
to capital punishment unless said opposition “would prevent or substantially
impair the performance of his duties as a juror in accordance with his
instructions and his oath.” Adams v. Texas, 448 U.S. 38, 45 (1980); Wainwright

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v. Witt, 469 U.S. 412, 424 (1985). Excusal of a juror for cause in violation of
Witherspoon is reversible error and not subject to harmless error review. Gray
v. Mississippi, 481 U.S. 648, 668 (1987).
      The Supreme Court has specifically indicated that an expressed
willingness to follow the law does not necessarily overcome other indications of
bias. Morgan v. Illinois, 504 U.S. 719, 735 (1992). Morgan considered the
question of whether a death-eligible defendant has a constitutional right to
question prospective jury members as to whether they would always vote to
return a punishment of death if authorized to do so. In explaining that general
questions as to bias were insufficient to ferret out this type of bias (the opposite
of the type in this case), the Court noted that “a juror could, in good conscience,
swear to uphold the law and yet be unaware that maintaining . . . dogmatic
beliefs about the death penalty would prevent him or her from doing so.” Id. As
an example, the Court quoted an exchange between the trial judge and a
prospective juror in Witt:
      “THE COURT: Will you follow the law that I give you?

      “[A]: I could do that.

      “THE COURT: What I am concerned about is that you indicated
      that you have a state of mind that might make you be unable to
      follow the law of this State.

      “[A]: I could not bring back a death penalty.

Morgan, 504 U.S. at 735 n.9 (alterations in original). This exchange, according
to the Supreme Court, is one that illustrates the fact that a prospective juror
may believe she can follow the law and yet will actually be so biased in one
direction or another that her inclusion would infect a trial with fundamental
unfairness. Id. at 735. The corollary, of course, is that such a venire member
would be properly excluded for cause because her beliefs would prevent or


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substantially impair the performance of her duties as a juror. See, e.g., Beuke v.
Houk, 537 F.3d 618, 638 (6th Cir. 2008) (holding on habeas review that state
court exclusion of vacillating jurors for cause based on bias against capital
punishment was a reasonable application of Morgan and Witt).
      The exclusion of a juror for bias under the Witherspoon-Witt standard is
a question of fact subject to deferential review under AEDPA. Ortiz v.
Quarterman, 504 F.3d 492, 501 (5th Cir. 2007); see also Beuke, 537 F.3d at 638-
39. The state court’s resolution of this claim is thus presumed correct, and a
habeas petitioner must rebut this presumption by clear and convincing evidence.
Ortiz, 504 F.3d at 501.
      Varga has not met this standard. Robertson’s responses in voir dire are not
as clearly inconsistent and contradictory as the exchange from Witt excerpted
above. Robertson testified that she believed she could follow the law, that she
would listen to the evidence, and that she would not automatically return a life
sentence instead of a death sentence. But she also testified repeatedly that she
would find serving on a capital jury extremely difficult, that she did not know
how to set aside her beliefs, that she believed her beliefs would affect her
perception of the government’s case, and at one point, when asked point blank,
said she could not return a verdict of death in “these circumstances.” Although
the transcript does not clearly reflect what “these circumstances” meant in
context, this minor ambiguity is not enough to make a dispositive difference. In
essence Robertson gave, in longer form, the same answers given by the juror in
Witt. Deference is paid to a trial judge’s determination of bias precisely because
the trial judge is there to see and hear the juror and is in the best position to
make credibility determinations. Patton v. Yount, 467 U.S. 1025, 1038 (1984).
Given Robertson’s contradictory testimony, reasonable jurists could not disagree
that Varga has failed to rebut the presumption of correctness accorded this
ruling by clear and convincing evidence.

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Claim Two:
      The second claim raised by Varga as the basis for a COA is an ineffective
assistance of counsel claim against the counsel who represented him in the state
court proceedings, based on the failure to appeal the exclusion of Robertson from
the jury. The state habeas court found that Varga had not proven ineffective
assistance of counsel because the trial court had not erred in excusing Robertson
for cause based on her vacillation and her acknowledgment that her views on the
death penalty would affect her performance as a juror. The Texas Court of
Criminal Appeals adopted these conclusions and denied relief on this claim. The
district court held that counsel was not ineffective for failing to raise this issue
on appeal because, in a recent Texas Court of Criminal Appeals decision, that
court held that a prospective juror who gave conflicting answers as to her
opposition to the death penalty and ability to follow the law could be struck for
cause. Russeau v. State, 171 S.W.3d 871, 879-80 (Tex. Crim. App. 2005). The
district court reasoned that given Russeau, Varga had not established that any
claim his counsel had raised on direct appeal would have been decided
differently or made any difference to the outcome of his appeal. We agree.
      The Supreme Court has articulated a now-familiar test for claims of
ineffective assistance of counsel:


      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must
      show that the deficient performance prejudiced the defense. This
      requires showing that counsel’s errors were so serious as to deprive
      the defendant of a fair trial, a trial whose result is reliable. Unless
      a defendant makes both showings, it cannot be said that the
      conviction or death sentence resulted from a breakdown in the
      adversary process that renders the result unreliable.




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Strickland v. Washington, 466 U.S. 668, 687 (1984). The Sixth Amendment does
not require appellate counsel to raise every non-frivolous claim available on
appeal, since counsel’s effort to serve his client to the best of his professional
ability will often depend on strategic choices about which claims to pursue on
appeal. Jones v. Barnes, 463 U.S. 745, 751-52 (1983). However, the Supreme
Court has indicated that, while difficult, it is possible to make out a claim for
ineffective assistance of counsel based on defense counsel’s failure to raise
certain issues on appeal. Smith v. Robbins, 528 U.S. 259, 288 (2000)
(“Notwithstanding Barnes, it is still possible to bring a Strickland claim based
on counsel’s failure to raise a particular claim, but it is difficult to demonstrate
that counsel was incompetent.”). In Smith, the Supreme Court identified, as an
example supporting this statement, the Seventh Circuit case of Gray v. Greer,
800 F.2d 644 (7th Cir. 1986), in which that court stated that “[g]enerally, only
when ignored issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be overcome.” Smith, 528 U.S. at
288 (quoting Gray, 800 F.2d at 646). In Gray, the Seventh Circuit further held
that if appellate counsel “failed to raise a significant and obvious issue, the
failure could be viewed as deficient performance” and that if the issue that was
not raised “may have resulted in a reversal of the conviction, or an order for a
new trial, the failure was prejudicial.” 800 F.2d at 646.
      We have found that reasonable jurists could not disagree that the state
court’s exclusion of Robertson was a reasonable application of the law. Thus the
state court was reasonable in finding that it was not ineffective assistance of
counsel not to bring a likely meritless claim on appeal. Further, as the district
court reasoned, Varga has not made any showing that the Texas Court of
Criminal Appeals would have decided his case any differently than it decided a
similar situation in Russeau, and thus has not made any showing that the
outcome of his appeal would have been any different had counsel raised

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Robertson’s exclusion on direct appeal. Reasonable jurists could not disagree
that the state court’s determination that counsel was not ineffective was a
reasonable application of federal law.


Claim Three:
      Varga contends that his due process rights were violated because, during
rebuttal at the punishment phase, the state trial court allowed the prosecution,
over the defense’s objection, to elicit evidence from Logie’s widow about abuse
she suffered as a child at the hands of her step-father. Diane Logie, the widow
of one of the men Varga was convicted of murdering, was permitted to describe
for the jury physical and verbal abuse she endured at her step-father’s hands
between the ages of six and thirteen. Although Varga had testified as to his own
childhood circumstances the defense did not argue that his childhood explained
or excused his crime – the evidence was standard mitigation evidence offered to
give the jury an understanding of Varga’s character and history in order to
enable them to make the individualized determination that the Constitution
requires. See, e.g., Tuilapea v. California, 512 U.S. 967, 972 (1994). The
prosecution, however, argued that implicit in Varga’s testimony was an
argument that people who suffer in childhood later commit crimes, and that Mrs.
Logie’s testimony was rebuttal to that argument since she suffered abuse in
childhood but did not commit any crimes. The evidence was admitted on this
basis. Varga argues on appeal that the evidence was irrelevant and that it was
injurious because it intensified the jury’s sympathy for Mrs. Logie and invited
the jury to judge Varga based on Mrs. Logie’s moral character.
      The admission of unduly prejudicial evidence is a violation of the Due
Process Clause of the Fourteenth Amendment if it renders the trial
fundamentally unfair. Payne v. Tennessee, 501 U.S. 808, 825 (1991); see also
Darden v. Wainwright, 477 U.S. 168, 181 (1986). This circuit has held that “the

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erroneous admission of prejudicial evidence will justify habeas relief only if the
admission was a crucial, highly significant factor in the defendant’s conviction.”
Wood v. Quarterman, 503 F.3d 408, 414 (2007). The Texas Court of Criminal
Appeals, on direct and habeas review, and the district court below, in
considering whether this testimony compromised the fairness of Varga’s trial,
assumed that it was irrelevant and improper rebuttal testimony but concluded
that since it was advancing a well-known proposition (that people with bad
childhoods do not always commit crimes), and was short and not inflammatory,
it could not have seriously damaged his chances of obtaining life imprisonment
instead of a death sentence. Any alleged error in its admission was thus deemed
harmless.
      Reasonable jurists could not disagree that the state court’s determination
that this error was harmless was a reasonable application of federal law. Mrs.
Logie’s evidence occupied only two pages of the trial transcript. The murders
themselves were gruesome and the jury heard substantial evidence to this effect
during the guilt phase of the trial. In addition, at the punishment phase, the
State presented evidence that petitioner had attempted to escape from jail while
awaiting trial; that police had been called to his house numerous times on
domestic violence complaints, and that police had seen him strike someone
during one of these calls; that police had found his ex-wife’s driver’s license with
the face scratched out and a copy of a restraining order with “fuck you” written
on it at his house; and that while previously incarcerated the defendant had
preyed on other inmates and been a constant security risk. In the context of all
this evidence the admission of Mrs. Logie’s short testimony, while it may have
been erroneous, cannot be said to have had such a substantial and injurious
effect on the trial that it rendered it constitutionally unfair. See, e.g., O’Brien v.
Dretke, 156 Fed. App’x 724, 737-38 (5th Cir. 2005) (unpublished) (denying COA
on ground that any error in admission of testimony about defendant’s gang

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affiliation at penalty phase was harmless where substantial evidence was
presented about defendant’s brutal rape and murder of a teenage girl and his
past criminal history and violent behavior). The COA is denied as to this claim.


Claim Four:
      Varga’s final claim is that his sentence violates the Sixth Amendment, as
applied in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536
U.S. 548 (2002), because his death sentence did not require a jury to find beyond
a reasonable doubt that there was an absence of mitigating circumstances
warranting life imprisonment instead of death. The state habeas court held that
the claim was procedurally barred because it had not been raised at trial, and
alternatively that it was foreclosed by Fifth Circuit precedent. The district court
held that the claim was procedurally barred in federal court because the state
habeas court had denied relief on the basis of an independent and adequate state
law ground, and that alternatively it was barred by Fifth Circuit precedent.
      It is well established that a habeas petitioner’s federal claim is defaulted
when the last state court to consider it denied relief based on an adequate and
independent state law ground. See Coleman v. Thompson, 501 U.S. 722, 729
(1991). We have held that the Texas contemporaneous objection rule constitutes
an adequate and independent state ground. Jackson v. Johnson, 194 F.3d 641,
652 (5th Cir. 1999).
      Varga argues that the claim is not barred because his objection was not
available at trial because, although Apprendi had already been handed down at
the time, Ring had not. Even assuming arguendo that the claim is not
procedurally barred, the substance of the claim is foreclosed by circuit precedent.
This circuit has specifically held that the Texas death penalty scheme does not
violate the Sixth Amendment even though it does not require the prosecution to
prove the absence of mitigating factors beyond a reasonable doubt. Granados v.

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Quarterman, 455 F.3d 529, 536-37 (5th Cir. 2006). Where a district court has
denied claims on procedural grounds, a COA is warranted only when “jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and . . . jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack, 529 U.S.
at 484 (emphasis added).
      Varga acknowledges that Granados and the cases following it foreclose his
claim, but argues they were incorrectly decided and thus that reasonable jurists
could disagree with the district court’s denial of relief on this basis. However a
panel of this circuit is not at liberty to overrule a prior decision of another panel
of this circuit in the absence of en banc consideration or intervening Supreme
Court precedent. United States v. Lipscomb, 299 F.3d 303, 313 (5th Cir. 2002).
Thus reasonable jurists could not disagree that the petition does not state a
claim for relief on this ground, and the COA is denied as to Claim Four.


                               IV. CONCLUSION
      For the foregoing reasons, Varga’s request for a COA is DENIED as to all
claims.




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