                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                      ____________________

                             No. 00-41121
                      ____________________

                        MONTY ALLEN DELK,

                                              Petitioner-Appellant,

                                versus

                 GARY L. JOHNSON, DIRECTOR, TEXAS
                  DEPARTMENT OF CRIMINAL JUSTICE,
                      INSTITUTIONAL DIVISION,

                                              Respondent-Appellee.
____________________________________________________________

          Appeal from the United States District Court
                for the Eastern District of Texas
                          (1:98-CV-1583)
____________________________________________________________
                            August 13, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Monty Allen Delk, convicted for capital murder and sentenced

to death, seeks a certificate of appealability to appeal the denial

of federal habeas relief.     DENIED.

                                  I.

     In 1988, a Texas jury convicted Delk for capital murder.   The

evidence at trial was: in November 1986, Delk contacted the victim

in Texas about purchasing an automobile advertised for sale in a



     *
      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this opinion should not be published and is not precedent except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.
newspaper; after the victim met Delk with the vehicle on 29

November, the victim’s wife saw the victim and Delk in the vehicle,

with Delk driving it; a few hours later, the victim was discovered,

with a fatal shotgun wound; Delk was arrested on 2 December, after

a police officer observed the victim’s vehicle at a house in

Louisiana where Delk was located; included among the items in

Delk’s possession were a copy of the newspaper advertisement, a

sawed-off shotgun, the victim’s car keys, and a photograph of the

victim’s wife, which the victim had carried in his wallet.            Delk v.

State, 855 S.W.2d 700, 702-03 (Tex. Crim. App. 1993).

     At the penalty phase, the State’s evidence included Delk’s

estranged   wife,   Tina   Delk,    and   her    brother,   Richard     Frye,

testifying Delk had previously contemplated committing similar

crimes, and had told them he had killed a man in Florida; and

Delk’s mother-in-law, his wife’s former employer, and two of his

former co-workers testifying Delk had threatened them. Id. at 708.

Based on the jury’s affirmative answers to the special issues

regarding   deliberateness    and    future     dangerousness,   Delk    was

sentenced to death.   Id. at 702.    On direct appeal, the Texas Court

of Criminal Appeals affirmed the conviction and sentence.             Id. at

712. The Supreme Court denied certiorari.         Delk v. Texas, 510 U.S.

982 (1993).

     Delk sought state habeas relief in 1997.           After conducting

hearings that September and November, the trial court, in February


                                     2
1998, recommended denial of relief. Ex parte Delk, No. 19277-A (3d

Jud. Dist. Ct., Anderson County, Tex. 3 Feb. 1998) (unpublished).

That April, the Court of Criminal Appeals denied relief without a

written order.   Ex parte Delk, No. 36,617-01 (Tex. Crim. App. 15

Apr. 1998).

     That August, Delk sought federal habeas relief, raising 21

issues.   Relief was denied in March 2000.

     Delk sought a certificate of appealability (COA) from the

district court as to eight issues:   (1) “Whether [he] is presently

competent to proceed at federal habeas”; (2) “Whether [he] was

competent to proceed at state habeas”; (3) “Whether the results of

the state and federal habeas proceedings initiated by [appointed

habeas counsel] are binding upon him by reason of assent or

acquiescence”; (4) “Whether flaws in the fact finding process used

by the Texas court regarding [his] competence preclude [a federal

court] from according deference to the state court findings”; (5)

“Whether an evidentiary hearing regarding [his] competence, with

the attendant funding for experts and discovery, is required to be

conducted in [district] court”; (6) “Whether a remand to this

[(district?)] court for an evidentiary hearing regarding [his

claims under Brady v. Maryland, 373 U.S. 83 (1963), and Strickland

v. Washington, 466 U.S. 668 (1984)], with the attendant funding for

experts, discovery, and compulsory process, is required”; (7)

“Whether the summary excusal of the nine [venire members] with


                                 3
doubts about the death penalty requires a new trial”; and (8)

“Whether    [his]   juror   claims    are   procedurally    barred....”   The

district court denied a COA for each issue.

     Delk seeks a COA from our court on ten issues.           But, only four

of those ten were included in his COA requests to the district

court.     The ten issues, in the order presented here, are:              (1)

“Whether the Texas Court of Criminal Appeals’ post-conviction

refusal to fund a thorough mental health examination denied [him]

full and fair consideration of his claim of incompetence to proceed

at state habeas, which rendered the state evidentiary record

incomplete and unreliable, and its competence finding unworthy of

deference ...” (in district court COA request); (2) “Whether the

District Court erred in refusing to fund and conduct its own mental

health examination and evidentiary hearing [on his] claim of [his]

incompetence to proceed at federal habeas” (in district court COA

request); (3) “Whether the District Court erred in finding [him]

competent to be executed ...” (not in district court COA request);

(4) “Whether [trial counsel rendered ineffective assistance by]

fail[ing] to investigate [his] medical and mental health background

...” (not in district court COA request); (5) “Whether the trial

court [erred by] excusing for ‘cause’ ... nine [venire members

based on their views regarding the death penalty] ...” (in district

court    COA   request);    (6)      “Whether   [trial     counsel   rendered

ineffective assistance by] fail[ing] to attempt to rehabilitate the

nine excused [venire members] ...” (not in district court COA

                                       4
request);    (7)    “Whether      the    Texas     Court    of    Criminal    Appeals’

refusal, at state habeas, to fund needed discovery, and compel the

attendance of ... witnesses ... [at the state evidentiary hearing]

denied   [him]     full    and    fair    consideration          of   his   Brady    and

Strickland    claims,       which    rendered       their      denial   unworthy      of

deference    by    the    ...    District       Court”   (in     district    court   COA

request); (8) “Whether the prosecutors violated the Due Process

Clause by withholding from the defense impeaching information

bearing on the reliability of the ‘future dangerousness’ testimony

of Tina Delk” (not in district court COA request); (9) “Whether

[trial counsel rendered ineffective assistance] by failing to

investigate the background of ... Richard Frye and Tina Delk” (not

in district court COA request); and (10) “Whether the trial judge

violated the Due Process Clause and the Eighth Amendment by 1)

failing to inform the sentencing jury that Mr. Delk would serve a

minimum of 20 years before parole eligibility, and 2) falsely

informing a prison community jury that Mr. Delk would actually be

imprisoned for life if [he did not receive the death penalty]” (not

in district court COA request).

     Because Delk did not seek a COA from the district court for

issues 3, 4, 6, and 8-10, we do not have jurisdiction to consider

those COA requests.2        See Goodwin v. Johnson, 224 F.3d 450, 459 n.6


     2
      Although the State does not assert a jurisdictional bar to
consideration of any of the issues for which Delk seeks a COA, we,
of course, have a duty to consider our jurisdiction sua sponte.

                                            5
(5th Cir. 2000) (“before we may consider a petitioner’s application

for a COA on a particular issue, that petitioner must first submit

his request to the district court and have that request denied”),

cert. denied, 121 S. Ct. 874 (2001); Sonnier v. Johnson, 161 F.3d

941, 946 (5th Cir. 1998) (“Compliance with the COA requirement of

28 U.S.C. § 2253(c) is jurisdictional, and the lack of a ruling on

a COA in the district court causes this court to be without

jurisdiction to consider the appeal.”); Whitehead v. Johnson, 157

F.3d 384, 387-88 (5th Cir. 1998) (consideration of merits of issue

not addressed in district court’s COA determination “would run

afoul of the requirement that initially the district court deny a

COA as to each issue presented by the applicant”); Muniz v.

Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (“district court must deny

the COA before a petitioner can request one from this court”; COA

which does not specify issues warranting appellate review “is

insufficient to vest jurisdiction in this court”).    Moreover, in

addition to not seeking a COA in district court on the Brady claim

that is the subject of issue 8 in Delk’s COA application here, the

Brady claim was not raised in district court as a ground for habeas

relief.   See Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir.)

(habeas claim not raised in district court cannot be considered

when raised for first time on appeal), petition for cert. filed, __




E.g., Burt v. Ware, 14 F.3d 256, 257 (5th Cir. 1994).

                                6
U.S.L.W. __ (U.S. 13 June 2001) (No. 00-10618).                 Accordingly, we

consider Delk’s COA requests only for issues 1, 2, 5, and 7.3

                                        II.

     Because Delk sought appellate review of the denial of habeas

relief after the effective date of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), “the right to appeal is governed

by the certificate of appealability (COA) requirements now found at

28 U.S.C. § 2253(c)”.          Slack v. McDaniel, 529 U.S. 473, 478 (2000).

To obtain a COA, Delk must make “a substantial showing of the

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

that showing, Delk must demonstrate “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”.        Slack,   529    U.S.   at    484   (internal   quotation   marks

omitted).       For claims as to which the district court denied relief

on the merits, he “must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims

debatable or wrong”.             Id.    To the extent the district court

rejected    a    claim    on   procedural     grounds   without   reaching   the



     3
      In the alternative, even assuming the six new COA requests
are subsumed within those presented to the district court, we would
not grant a COA for any of them, essentially for the reasons stated
in the denial by the district court of habeas relief on these or
similar issues, and because Delk fails to satisfy the standards for
granting a COA, discussed infra.

                                         7
underlying constitutional issue, Delk must show “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”.     Id.

       “[T]he determination of whether a COA should issue must be

made   by   viewing   [Delk]’s    arguments   through   the   lens   of   the

deferential scheme laid out in 28 U.S.C. § 2254(d)”. Barrientes v.

Johnson, 221 F.3d 741, 772 (5th Cir. 2000), cert. dismissed, 121 S.

Ct. 902 (2001).    When a claim has been adjudicated on the merits in

state court, a federal habeas court must defer to the state court’s

decision unless it “[is] contrary to, or involve[s] an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States; or ... [is] 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)(1)

& (2).

       A decision is “contrary to ... clearly established Federal

law, as determined by the Supreme Court of the United States ... if

the state court arrives at a conclusion opposite to that reached by

th[e] Court on a question of law or if the state court decides a

case differently than th[e] Court has on a set of materially

indistinguishable facts”. Williams v. Taylor, 529 U.S. 362, 412-13

(2000).     A decision “involve[s] an unreasonable application of []


                                     8
clearly established Federal law, as determined by the Supreme Court

of the United States ... if the state court identifies the correct

governing   legal     principle        from      th[e]   Court’s      decisions    but

unreasonably applies that principle to the facts of the prisoner’s

case”.   Id.    A state court’s findings of fact are presumed to be

correct unless the petitioner rebuts the presumption by “clear and

convincing evidence”.     28 U.S.C. § 2254(e)(1).

                                           A.

      COA request 1 concerns Delk’s claim that the Court of Criminal

Appeals’ post-conviction refusal to fund a thorough mental health

examination denied him full and fair consideration of his claim of

incompetence to proceed at state habeas, which rendered the state

evidentiary record incomplete and unreliable, and its competence-

finding unworthy of deference.

      The state habeas court found Delk did not meet his burden of

proving he was either incompetent to assist his habeas counsel or

had   insufficient     ability        to    understand       either    factually    or

rationally the proceedings against him. The district court adopted

the magistrate judge’s recommendation that this finding was not

unreasonable, in the light of the evidence presented at the state

habeas evidentiary hearing, including:                   Delk has a history of

manipulation;    he    finds     it     in      his   best    interest    to   appear

incompetent when an audience is available; and, if he wishes to do

so, he has the ability to consult with his lawyer with a reasonable



                                            9
degree of rational understanding.           The district court concluded:

Delk was given an adequate opportunity to present his factual

claims to the state court; and the state habeas court’s finding

that Delk was competent to proceed at state habeas was supported by

testimony   at    the   state   habeas      evidentiary     hearing,    which

demonstrated Delk is coherent when he wants to be and has been

diagnosed as feigning mental illness in order to avoid execution.

     Delk is not entitled to a COA on this claim because he has not

demonstrated that “reasonable jurists would find the district

court’s assessment of [this] claim[] debatable or wrong”.               Slack,

529 U.S. at 484.    He cites no authority for the proposition that

the Constitution    requires    a   death    row   inmate   to   be   mentally

competent to assist counsel in pursuing state habeas relief or to

participate in state habeas proceedings.             Along this line, our

court has noted that the Supreme Court has not mandated addition of

an “assistance prong” to the standard for determining competency to

be executed.     See Barnard v. Collins, 13 F.3d 871, 877 n.4 (5th

Cir.), cert. denied, 510 U.S. 1102 (1994).          Therefore, Delk seeks

the announcement of a new rule of criminal procedure which cannot

be applied retroactively on collateral review (Teague-barred).

See, e.g., Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (federal

court may not grant “habeas relief to a state prisoner based on a

rule announced after his conviction and sentence became final”);



                                    10
Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality).    Delk does

not claim an exception to this nonretroactivity principle.

     Although the state habeas court conducted an evidentiary

hearing to determine Delk’s competency to proceed at state habeas,

it was not constitutionally required to do so.   Accordingly, Delk

is not entitled to a COA on the ground that the state court’s

competency finding is not entitled to deference because of the lack

of adequate funding for a thorough mental health examination,

because alleged deficiencies in state habeas proceedings are not a

basis for federal habeas relief.     See Nichols v. Scott, 69 F.3d

1255, 1275 (5th Cir. 1995) (“An attack on a state habeas proceeding

does not entitle the petitioner to habeas relief in respect to his

conviction, as it is an attack on a proceeding collateral to the

detention and not the detention itself.” (emphasis added; internal

quotation marks and citation omitted)), cert. denied, 518 U.S. 1022

(1996); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992)

(“infirmities in state habeas proceedings do not constitute grounds

for federal habeas relief” (emphasis added)), cert. denied, 507

U.S. 1056 (1993).

                                B.

     COA request 2 concerns Delk’s related claim that the district

court erred by refusing to fund a mental health examination and

conduct an evidentiary hearing to determine his competency to

participate in federal habeas proceedings.    He maintains such a

                                11
hearing is required by Mata v. Johnson, 210 F.3d 324 (5th Cir.

2000).

     The     district   court     adopted   the   magistrate    judge’s

recommendation that Delk’s claim of incompetence to assist his

attorney in the federal proceeding could be resolved on the basis

of the state court’s findings.       In denying a COA for this claim,

the district court noted that the evidence presented by Delk did

not raise a bona fide doubt as to his competency, and stated that

Delk had not demonstrated “why a reasonable person might find”

otherwise.

     Delk is not entitled to a COA on this claim because he has not

demonstrated that “jurists of reason would find it debatable

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

constitutional right and ... whether the district court was correct

in its procedural ruling”.      Slack, 529 U.S. at 484.   As is the case

in regard to his claim regarding competency to proceed at state

habeas, Delk cites no authority holding that the Constitution

requires a death row inmate to be mentally competent to assist

counsel in pursuing federal habeas relief; therefore, this claim is

also Teague-barred.

     Contrary to Delk’s assertion, Mata does not mandate a federal

evidentiary hearing on his claim of incompetency to participate in

federal habeas proceedings.      Mata dealt with “whether the district

court conducted a constitutionally adequate fact-finding inquiry to


                                    12
make a reliable determination of Mata’s competency to abandon

collateral review of his capital murder conviction and sentence”.

Mata, 210 F.3d at 327.          Mata applied Supreme Court precedent

requiring   that   a   habeas   petitioner    be   competent   to   abandon

collateral review in a capital case.         Id. at 327-28.    There is no

similar constitutional requirement that a petitioner be competent

to participate in a federal habeas proceeding; accordingly, the

district court was not required to conduct an evidentiary hearing

on Delk’s competence to participate.     See Hicks v. Wainwright, 633

F.2d 1146, 1150 (5th Cir. Unit B 1981) (“When the only question is

legal rather than factual no evidentiary hearing is needed.”),

quoted in Barrientes, 221 F.3d at 770.

                                    C.

     Delk’s COA request 5 concerns his claim that the trial court

violated his Sixth and Fourteenth Amendment rights by excusing for

cause nine venire members on the ground that they could not impose

death as a penalty.

     “[T]he proper standard for determining when a prospective

juror may be excluded for cause because of his or her views on

capital punishment ... is whether the juror’s views would prevent

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

accordance with his instructions and his oath”.            Wainwright v.

Witt, 469 U.S. 412, 424 (1985) (internal quotation marks omitted).

A venire member’s being excused for cause is an implicit finding of


                                    13
bias, which is presumptively correct under 28 U.S.C. § 2254(e)(1).

See id.; see also McFadden v. Johnson, 166 F.3d 757, 758 (5th

Cir.), cert. denied, 528 U.S. 947 (1999); Williams v. Collins, 16

F.3d 626, 633 (5th Cir.), cert. denied, 512 U.S. 1289 (1994).

       The state habeas court found Delk failed to meet his burden of

proving the nine venire members had not disqualified themselves by

their statements to the trial judge, considered in the context of

their accompanying demeanor and vocal inflections, that, because of

their views on capital punishment, they could not answer the

special issues affirmatively based on the evidence.          The district

court denied relief on this claim because the record demonstrated

the nine were properly excused because they could not follow the

law.

       Delk is not entitled to a COA for this claim because he has

not demonstrated that “reasonable jurists would find the district

court’s assessment of [this] claim[] debatable or wrong”.              Slack,

529 U.S. at 484.   As the district court noted, the record supports

the trial court’s presumptively-correct, implicit finding that the

nine   unambiguously   stated   they    would   not   administer   a   death

sentence under any circumstances.         Delk has not rebutted these

presumptively-correct findings, nor has he demonstrated the state

trial court’s rulings were “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)(2).


                                   14
                                           D.

      Delk’s COA request 7 concerns his claim that the Court of

Criminal    Appeals’      refusal,       at   state    habeas,   to     fund    needed

discovery and to compel the attendance of Tina Delk, Richard Frye,

and the prosecutor’s former investigator at the state habeas

evidentiary hearing denied him full and fair consideration of his

Brady and Strickland claims, which rendered their denial unworthy

of deference by the district court.

      Delk’s Brady claim, asserted in his state habeas application,

but   not   as    a   ground       for   federal   habeas     relief,    was:      the

prosecution failed to disclose that Florida authorities did not

intend to prosecute Delk for the Florida murder which Tina Delk had

reported to them; and this could have been used to impeach Tina

Delk’s testimony at the penalty phase (that Delk told her he had

committed that murder).            During the state habeas proceeding, Delk

expanded    his       Brady    claim     to     include   allegations      that     the

prosecution      failed       to   disclose     Tina   Delk   had   been    a     child

prostitute with mental problems.

      Among the Strickland claims asserted by Delk in his state

habeas application, and as grounds for federal habeas relief, were

that counsel rendered ineffective assistance:                    at voir dire, by

failing to attempt to rehabilitate the nine persons excused for

cause; and at the penalty phase, by failing to investigate both the




                                           15
backgrounds of the State’s witnesses for impeachment material and

Delk’s mental health.

       The state habeas court found:       Delk’s “writ counsel’s efforts

to induce the Court to issue bench warrants, subpoenas and to

authorize[] out of state depositions for the stated purpose of

obtaining ‘impeachment information’ about state witnesses, have

never been accompanied by any representation or allegation by writ

counsel that would lead a rational [trier] of the facts to believe

that these efforts are anything more than a ‘fishing expedition’”;

and Delk did not satisfy his burden of proving the State failed to

furnish him with adequate financial resources to timely investigate

and present his claims.         It concluded that trial courts in post-

conviction habeas proceedings are not required to compel attendance

or testimony of witnesses who testified at trial, absent a showing

they   “have   testimony   to    offer   which   would   if   taken   as   true

establish grounds for habeas relief”.

       Regarding Delk’s claim that the Texas state courts did not

adequately fund his habeas proceeding to allow full development of

the record, the magistrate judge recommended a constitutional claim

was not stated.     The district court adopted that recommendation,

and also denied Delk’s request for an abatement of the federal

proceeding until his counsel had additional time to complete

background investigations of Frye and Tina Delk.                The district

court observed:    Delk was given an adequate opportunity to present

any factual claims in state court; his claims were the subject of

                                      16
a   state    evidentiary       hearing;      and    no   further    discovery      was

necessary.

      Delk is not entitled to a COA for this claim because he has

not   demonstrated       “reasonable      jurists    would   find    the   district

court’s assessment of [this] claim[] debatable or wrong”.                      Slack,

529 U.S. at 484.         As discussed supra, infirmities in state habeas

proceedings do not constitute grounds for federal habeas relief.

In any event, the state court’s refusal to allow discovery for this

claim,      or   to    finance     a   Chicago-area      investigation        of   the

backgrounds of Tina Delk and Frye, was not unreasonable, because

Delk’s claim that discovery and funding of such an investigation

would    likely       reveal   more    useful      impeachment     information      is

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

(“Allegations         that   are   merely    ‘conclusionary’       or   are    purely

speculative cannot support a Brady claim.”), cert. denied, 121 S.

Ct. 380 (2000); see also id. at 816-17 (federal rules governing §

2254 cases do not “authorize fishing expeditions”).

                                         III.

      For the foregoing reasons, a COA is



                                                                        DENIED.




                                            17
