               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 98-41474
                       _____________________

          EARL CARL HEISELBETZ, JR,

                               Petitioner-Appellant,

          v.

          GARY JOHNSON, Director, Texas Department of Criminal
          Justice, Institutional Division,

                               Respondent-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
                             (98-CV-37)
_________________________________________________________________

                           July 26, 1999

Before KING, Chief Judge, BARKSDALE and STEWART, Circuit Judges.

KING, Chief Judge:*

     Petitioner-appellant Earl Carl Heiselbetz, Jr., a Texas

death row inmate, requests a certificate of appealability in

order to appeal the district court’s grant of summary judgment on

his application for a writ of habeas corpus in favor of

respondent-appellee Gary Johnson, Director of the Texas

Department of Criminal Justice, Institutional Division.   We

decline to issue a certificate of appealability.


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
                I.   FACTUAL AND PROCEDURAL HISTORY

     In November 1991, petitioner Earl Carl Heiselbetz, Jr. was

convicted of the capital offense of committing two murders in the

same criminal transaction1 and sentenced to death in the district

court of Sabine County, Texas.   On June 28, 1995, the Texas Court

of Criminal Appeals, the state’s highest criminal court, affirmed

Heiselbetz’s conviction and sentence.       See Heiselbetz v. State,

906 S.W.2d 500, 513 (Tex. Crim. App. 1995) (en banc).      Heiselbetz

did not file a petition for writ of certiorari to the United

States Supreme Court.   On April 24, 1997, however, he filed an

application for state habeas corpus relief.      The state habeas

trial court entered findings of fact and conclusions of law,

which the Texas Court of Criminal Appeals adopted, denying

Heiselbetz’s habeas application.       On February 5, 1998, Heiselbetz

filed a federal habeas application in the United States District

Court for the Eastern District of Texas.      The district court

referred all dispositive motions filed in the case to a

magistrate judge, who recommended that the district court deny

relief.   Both parties filed objections, but the district court

ultimately adopted the magistrate judge’s report and

recommendations and denied habeas relief.      The district court

also denied Heiselbetz’s request for a certificate of



     1
        The prosecution’s theory of the case was that on May 30,
1991, in Sabine County, Texas, Heiselbetz murdered both Rena
Rogers, his neighbor, and her two-year-old daughter, Jacy Rogers.
See Heiselbetz v. State, 906 S.W.2d 500, 504-06 (Tex. Crim. App.
1995) (en banc).

                                   2
appealability (COA).   Heiselbetz now requests a COA from this

court.

                           II.   DISCUSSION

A.   Standard of Review

     Under the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), Heiselbetz must obtain a COA in order to appeal the

denial of his habeas petition.2    A COA may be issued only if the

prisoner has made a “substantial showing of the denial of a

constitutional right.”    28 U.S.C. § 2253(c)(2).   “A ‘substantial

showing’ requires the applicant to ‘demonstrate that the issues

are debatable among jurists of reason; that a court could resolve

the issues (in a different manner); or that the questions are

adequate to deserve encouragement to proceed further.’”     Drinkard

v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996) (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 n.4 (1983)).

     Moreover, where a state court has adjudicated the habeas

applicant’s claim on the merits, we cannot grant a COA unless the

applicant makes a substantial showing that the state court

decision is not entitled to deference under 28 U.S.C. § 2254(d).

See Corwin v. Johnson, 150 F.3d 467, 476 (5th Cir.), cert.


     2
        Heiselbetz does not appear to contest that the AEDPA
applies to his federal habeas application. In both the district
court and our court, he filed requests for certificates of
appealability, the AEDPA’s term for a certificate of probable
cause. See Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997)
(citing 28 U.S.C. § 2253(c)(2)). Moreover, we note, he filed his
habeas application on February 5, 1998, well after the April 24,
1997 deadline for prisoners whose convictions became final before
AEDPA’s effective date. See Flanagan v. Johnson, 154 F.3d 196,
200 (5th Cir. 1998).

                                   3
denied, 119 S. Ct. 613 (1998).   As amended by the AEDPA, this

section provides:

     (d) An application for a writ of habeas corpus on behalf of
     a person in custody pursuant to the judgment of a State
     court shall not be granted with respect to any claim that
     was adjudicated on the merits in State court proceedings
     unless the adjudication of the claim

          (1) resulted in a decision that was contrary to, or
          involved an unreasonable application of, clearly
          established Federal law, as determined by the Supreme
          Court of the United States; or

          (2) 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.

Our case law has fleshed out these statutory standards.    We have

explained, for example, that “a reasonable, good faith

application of Supreme Court precedent will immunize the state

court conviction from federal habeas reversal, even if federal

courts later reject that view of the applicable precedent.”      Mata

v. Johnson, 99 F.3d 1261, 1268 (5th Cir. 1996), vacated in part

on other grounds on reh’g, 105 F.3d 209 (5th Cir. 1997).

Similarly, we have held that “[a]n application of federal law is

unreasonable only ‘when it can be said that reasonable jurists

considering the question would be of one view that the state

court ruling was incorrect.’”    Trevino v. Johnson, 168 F.3d 173,

181 (5th Cir. 1999) (quoting Drinkard, 97 F.3d at 769), petition

for cert. filed, --- U.S.L.W. --- (U.S. June 17, 1999) (No. 98-

9936).

     Finally, where the district court denied relief because the

applicant’s claim was procedurally barred, see Coleman v.



                                 4
Thompson, 501 U.S. 722, 729 (1991),3 we employ a two-step COA

process.    See Robison v. Johnson, 151 F.3d 256, 262 (5th Cir.

1998), cert. denied, 119 S. Ct. 1578 (1999). We first ask whether

the applicant has made a credible showing that his claim is not

so barred.    See id.   If the applicant meets that requirement, we

then determine if he “has made a substantial showing of the

denial of a constitutional right” with respect to the underlying

claim.    Id. (internal quotation marks omitted).

     With these principles in mind, we proceed to consider the

issues on which Heiselbetz requests a COA.

B.   Heiselbetz’s Claims

     1.    State Habeas Court’s Refusal to Hold an Evidentiary
           Hearing

     First, Heiselbetz argues that the state habeas court’s

failure to hold an evidentiary hearing on his claims denied him

his Fourteenth Amendment right to due process of law and his

Sixth Amendment right to the assistance of counsel.    In addition,

he contends that, in the absence of an evidentiary hearing, the

state court adjudication is not entitled to deference under



     3
        It is well settled that federal review of a claim is
procedurally barred if the last state court to consider the claim
expressly and unambiguously based its denial of relief on a state
procedural default. See Coleman, 501 U.S. at 729; Fisher v.
Texas, 169 F.3d 295, 300 (5th Cir. 1999). A state court may
expressly and unambiguously base its denial of relief on a state
procedural default even if it alternatively reaches the merits of
a habeas petitioner’s claim. See Harris v. Reed, 489 U.S. 255,
264 n.10 (1989); Ellis v. Lynaugh, 873 F.2d 830, 838 (5th Cir.
1989). Federal review is not foreclosed, however, unless the
state courts’ procedural bar is “strictly or regularly followed.”
Johnson v. Mississippi, 486 U.S. 578, 587 (1988).

                                   5
§ 2254(d).   We conclude that Heiselbetz has failed to make a

substantial showing of the denial of a constitutional right.

     It is well-established law in this circuit that “errors in a

state habeas proceeding cannot serve as a basis for setting aside

a valid original conviction.   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.’”

Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) (quoting

Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir. 1987)); see

Trevino, 168 F.3d at 180 (holding that infirmities in state

habeas proceedings do not constitute grounds for relief in

federal court); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th

Cir. 1992) (same); Vail v. Procunier, 747 F.2d 277, 277 (5th Cir.

1984) (same).   Other circuits similarly have decided that habeas

corpus relief is not available to correct alleged errors in state

habeas proceedings.   See, e.g., Jolly v. Gammon, 28 F.3d 51, 54

(8th Cir. 1994); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir.

1989); Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988);

Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987); Kirby

v. Dutton, 794 F.2d 245, 247 (6th Cir. 1986).   But see Dickerson

v. Walsh, 750 F.2d 150, 153 (1st Cir. 1984) (allowing a federal

habeas claim arising out of alleged errors in a state court

habeas proceeding).   Under the law of this circuit, Heiselbetz

has failed to make a substantial showing of a denial of a




                                 6
constitutional right.   We therefore decline to issue a COA on

this issue.

     We also reject Heiselbetz’s contention that the lack of a

hearing renders the state court habeas proceeding insufficient

for deference purposes under § 2254(d).   Under the post-AEDPA

habeas regime, we must defer to a state court adjudication “on

the merits,” as opposed to one decided on procedural grounds, of

a habeas petitioner’s claim, unless two statutory exceptions

apply.   28 U.S.C. § 2254(d).   Resolution on the merits is “a term

of art in the habeas context that refers not to the quality of a

court’s review of claims, but rather to the court’s disposition

of the case--whether substantive or procedural.”     Green v.

Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).     Indeed, the Green

court explicitly rejected the argument of the habeas applicant in

that case that the AEDPA’s adjudication on the merits

prerequisite is a proxy for the quality of the legal process of

resolving a dispute and that, to be entitled to deference under

§ 2254(d), the court’s treatment of the application must evince

careful consideration and a thorough and meaningful substantive

evaluation of the claims.   See id. at 1120-21.    In short, whether

an adjudication is “on the merits” does not depend on whether the

state habeas court held a hearing.    Therefore, the absence of a

hearing, by itself, does not excuse us from the deference

§ 2254(d) requires that we afford to state court habeas

adjudications.




                                  7
     2. State Trial Court’s Refusal to Grant a Continuance

     Second, Heiselbetz contends that the state trial court’s

refusal to grant a continuance violated his Sixth Amendment

rights to the effective assistance of counsel and compulsory

process and his Fourteenth Amendment right to due process of law.

Although Heiselbetz’s trial was set for late October 1991, his

attorney, John Walker, was not appointed to represent him until

July 29, 1991.   The court did not appoint an investigator to

assist Walker until September 9, 1991.   On September 20, 1991,

the prosecutor presented Walker with a list of over seventy-five

potential witnesses, and several weeks later, on October 14,

1991, Walker filed a motion for a continuance seeking additional

time to prepare for trial.   The trial court denied the motion.

Heiselbetz claims that the denial of a continuance prevented

Walker from adequately investigating the effect of Heiselbetz’s

1975 head injury on his criminal conduct.   He also argues that

“there were additional problems stemming from the denial of a

continuance, including an inability to deal with a hostile

opinion climate, an inability to develop evidence of childhood

abuse, and a temporary problem with counsel’s illness.”   The

district court below found that Heiselbetz’s continuance-related

claims were procedurally barred.

     As we explained above, when the district court denies a

habeas application on procedural, nonconstitutional grounds, we

employ a two-step COA process, first looking to whether the

applicant has made a credible showing that his claim is not


                                   8
procedurally barred.     See Robison, 151 F.3d at 262.   In his brief

to this court, Heiselbetz makes no mention of the district

court’s conclusion that his claims stemming from the denial of a

continuance are procedurally barred.    He has therefore failed to

make a credible showing that the claims are not procedurally

barred, and we will not grant a COA on these issues.

     3.   State Trial Court’s Failure to Instruct the Jury on
          Minimum Period of Incarceration for a Capital Defendant
          Sentenced to Life Imprisonment

     We now turn to Heiselbetz’s next set of claims.     Heiselbetz

contends that the state trial court’s failure to instruct the

jury that, at the time, a defendant convicted of a capital crime

and sentenced to life imprisonment was required to serve fifteen

years before becoming eligible for parole violated the Eighth and

Fourteenth Amendments.    Citing Smith v. State, 898 S.W.2d 838,

847-53 (Tex. Crim. App. 1995), and Shannon v. State, 942 S.W.2d

591, 594 (Tex. Crim. App. 1996), the state habeas trial court

rejected Heiselbetz’s claims as “contrary to the law” and noted

that “[a]pplicant has not provided the court any reason why Smith

and the other cases following it should be reconsidered.”     The

Texas Court of Criminal Appeals later adopted the trial court’s

findings of fact and conclusions of law in denying habeas relief.

This disposition is clearly “on the merits” within the meaning of

§ 2254(d).   See Trevino, 168 F.3d at 181 (finding that an

explicit denial of relief by the Texas Court of Criminal Appeals

accompanied by findings of fact and conclusions of law qualified

as an “adjudication on the merits”); Davis v. Johnson, 158 F.3d


                                   9
806, 812 (5th Cir. 1998) (“We have previously found that an

explicit denial of relief on the merits by the Texas Court of

Criminal Appeals is an ‘adjudication on the merits’ entitled to

deference under AEDPA.”), cert. denied, 119 S. Ct. 1474 (1999);

Drinkard, 97 F.3d at 768 (finding “no question” that a claim was

adjudicated on the merits in state court proceedings where the

state trial court entered explicit findings later adopted by the

Texas Court of Criminal Appeals).    Because Heiselbetz’s claims

are, as he concedes, “purely matters of law,” we may not grant

relief unless the state court’s adjudication “resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States.”    28 U.S.C. § 2254(d)(1).

     Supreme Court precedent does not clearly establish that

either the Eighth or Fourteenth Amendment requires a trial court

to inform a jury that a capital defendant sentenced to life

imprisonment must serve fifteen years before becoming eligible

for parole.   Simmons v. South Carolina, 512 U.S. 154, 171 (1994)

(plurality opinion), Heiselbetz’s primary authority, holds that

where future dangerousness is an issue in a capital sentencing

determination, the defendant has a Fourteenth Amendment due

process right to have his sentencing jury informed that he will

never be eligible for parole if sentenced to life imprisonment.

On its face, Simmons applies only when a state, unlike Texas,

provides for a life-without-parole sentencing alternative to




                                10
capital punishment.4    The Simmons Court expressly declined to

reach the question of whether this result was also compelled by

the Eighth Amendment.    See id. at 162 n.4.    Heiselbetz does not

cite, and we have not found, any other Supreme Court authority

establishing that, under the Eighth or Fourteenth Amendments, a

capital sentencing jury must be informed that a defendant

sentenced to life imprisonment will not be eligible for parole

for fifteen years.

       Indeed, this court recently denied a CPC to appeal the

denial of a due process claim identical to Heiselbetz’s.      The

applicant in Boyd v. Johnson, 167 F.3d 907 (5th Cir. 1999),

petition for cert. filed, --- U.S.L.W. --- (U.S. June 11, 1999)

(No. 98-9745), sought a CPC to appeal the district court’s denial

of his § 2254 habeas application.     See id. at 908.   He claimed,

among other things, that the state trial court’s failure to

instruct the jury on the parole implications of a life sentence

in a capital case rendered the Texas sentencing scheme

unconstitutional under Simmons.     See id.    We declined to grant a

CPC:

       [I]n Allridge v. Scott, 41 F.3d 213, 222 (5th Cir. 1994), we
       interpreted Simmons to mean that “due process requires the
       state to inform a sentencing jury about a defendant’s parole
       ineligibility when, and only when, (1) the state argues that

       4
        Indeed, the Simmons plurality explicitly countered the
dissent’s argument that even among those states that permit the
sentencing jury to choose only between “life” (unspecified) and
“death,” South Carolina was not alone in keeping parole
information from the jury, id. at 179 & n.1 (Scalia, J.,
dissenting), by pointing out that two of these states, Texas and
North Carolina, did not have a life-without-parole sentencing
option. See id. at 168 n.8.

                                     11
     a defendant represents a future danger to society, and
     (2) the defendant is legally ineligible for parole.”
     Although the State argued that Boyd would represent a danger
     in the future, Boyd would have been eligible for release on
     parole had he received a life sentence. See Tex. Code Crim.
     Proc. Ann. § 42.18(8)(b)(2). Boyd’s eligibility for parole
     renders Simmons inapplicable to his case. See Allridge, 41
     F.3d at 222 (concluding Simmons unavailing in similar case).
     Hence, Boyd has not shown that the trial court violated his
     constitutional rights by failing to instruct the jury
     concerning his parole ineligibility.

Id. at 912-13; see Green v. Johnson, 160 F.3d 1029, 1045 (5th

Cir. 1998) (“[T]he Fifth Circuit has repeatedly refused to extend

the rule in Simmons beyond those situations in which a capital

murder defendant is statutorily ineligible for parole.”), cert.

denied, 119 S. Ct. 1107 (1999); Muniz v. Johnson, 132 F.3d 214,

224 (5th Cir.) (same), cert. denied, 118 S. Ct. 1793 (1998);

Woods v. Johnson, 75 F.3d 1017, 1036-37 (5th Cir. 1996) (same);

Johnson v. Scott, 68 F.3d 106, 111 (5th Cir. 1995) (same);

Montoya v. Scott, 65 F.3d 405, 416-17 (5th Cir. 1995) (same);

Allridge v. Scott, 41 F.3d 213, 221-22 (5th Cir. 1994) (same).

     We also have rejected claims that the denial of parole

information violates the Eighth Amendment.   In Green, for

example, we refused to grant a CPC to pursue a claim that the

trial court’s refusal to inform the jury that the habeas

applicant would not be eligible for parole for twenty years if

sentenced to life imprisonment violated the Eighth Amendment.

See 160 F.3d at 1044-45.   Similarly, in Johnson, we rejected such

a claim outright, noting that

     Justice Blackmun’s plurality opinion in Simmons declined to
     express an opinion as to whether the decision was compelled
     by the Eighth Amendment; therefore, Simmons does not rest on
     Eighth Amendment grounds as Johnson argues. We have

                                   12
     consistently held, however, that neither the due process
     clause nor the Eighth Amendment compels instructions on
     parole in Texas.

68 F.3d at 112 (citations omitted).

     Therefore, we conclude that the adjudication of the Texas

Court of Criminal Appeals on this issue was neither contrary to,

nor involved an unreasonable application of, Supreme Court

precedent.   Heiselbetz is not entitled to a COA on the claims

stemming from the trial court’s failure to inform the jury of his

parole eligibility.

     4.   State Trial Court’s Failure to Instruct the Jury on
          Meaning of “Same Criminal Transaction”

      Heiselbetz also contends that the state trial court’s

failure to instruct the jury as to the meaning of “same criminal

transaction” violated the Eighth Amendment.    Heiselbetz’s

indictment charged him with capital murder under Texas Penal Code

§ 19.03(a)(6) in that he committed the murders of Rena Rogers and

Jacy Rogers “during the same criminal transaction.”    Prior to

trial, Heiselbetz moved to quash the indictment on the ground

that “[t]he statute under which the indictment is brought,

namely, 19.03(6)(A) [sic] is unconstitutional because the statute

does not define ‘same criminal transaction’ and as such is

overbroad and does not confine the jury to an identifiable act,

motive or circumstance.”    The trial court rejected his contention

and, moreover, failed to offer any definition in the guilt-phase

jury instructions.    On direct appeal, Heiselbetz again raised

this issue, but the Texas Court of Criminal Appeals concluded

that it was inadequately briefed and denied relief.    In his state

                                 13
habeas application, Heiselbetz once more asserted the claim, only

to have the court rule that “[c]laims raised on direct appeal

cannot be relitigated in habeas corpus proceedings.”    The Texas

Court of Criminal Appeals later adopted the state habeas trial

court’s findings of fact and conclusions of law in denying relief

on this issue.   The federal district court below held that the

claim was procedurally barred.

     We turn first to whether Heiselbetz has made a credible

showing that his claim is not procedurally barred.     See Robison,

151 F.3d at 262-63.   Heiselbetz’s brief addresses this issue in a

single sentence:   “The federal district court also found a

procedural default, but that is a mixed question of fact and law,

and Petitioner claims the district court was incorrect.”     He

makes no argument that, for example, the state courts do not

“strictly or regularly” enforce the procedural bar in question,

Johnson v. Mississippi, 486 U.S. 578, 587 (1988), or that he can

show cause or prejudice for the procedural default, see Robison,

151 F.3d at 262.   Instead, Heiselbetz offers only a bald

assertion that his claim is not procedurally barred.    He thus

fails to make a credible showing that the district court erred in

so finding.    We decline to grant a COA on this issue.

     5.   Admission of Heiselbetz’s Ex-Wife’s Testimony

     Next, Heiselbetz argues that the admission of the testimony

of his wife at the time of the offense, Rebecca Heiselbetz,

violated the Fourteenth Amendment right to family privacy

recognized in Roe v. Wade, 410 U.S. 113 (1973).   Although


                                 14
Heiselbetz raised this claim in his state habeas application, the

state habeas trial court, whose findings of fact and conclusions

of law later were adopted by the Texas Court of Criminal Appeals,

did not directly address his constitutional argument.    Rather, it

concluded that in Heiselbetz’s case, the spousal privilege

recognized under the Texas Rules of Evidence did not apply

because Heiselbetz had been charged with a crime against a minor

child.    Because the Texas court adjudicated Heiselbetz’s

Fourteenth Amendment family privacy claim on the merits, we may

not grant relief unless the state adjudication resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established federal law as determined by

the Supreme Court.    See 28 U.S.C. § 2254(d)(1).   Heiselbetz has

cited, and we have found, no Supreme Court precedent clearly

establishing that a wife’s testimony against her husband violates

the Fourteenth Amendment.    Heiselbetz is not entitled to a COA on

this issue.

     6.   Nullification Instruction

     Heiselbetz’s next set of claims stems from the state trial

court’s failure to submit to the jury a discrete special issue on

mitigating circumstances.    During the sentencing phase,

Heiselbetz asked that the court give a third special issue, in

addition to the two required under Texas law, which would address

mitigating evidence directly.    The court denied this request,

submitting instead the following instruction:

     You are therefore instructed that your answers to the
     special issues, which determine the punishment to be

                                      15
     assessed the defendant by the Court, should be reflective of
     your finding as to the personal culpability of the
     defendant, EARL CARL HEISELBETZ, JR., in this case.
           You are instructed that when you deliberate on the
     questions posed in the special issues, you are to consider
     mitigating circumstances, if any, supported by the evidence
     presented in both phases of the trial, whether presented by
     the State or the Defendant. A mitigating circumstance may
     include, but is not limited to, any aspect of the
     defendant’s character and record or circumstances of the
     crime which you believe could make a death sentence
     inappropriate in this case. If you find that there are any
     mitigating circumstances in this case, you must decide how
     much weight they deserve, if any, and thereafter, give
     effect and consideration to them in assessing the
     defendant’s personal responsibility at the time you answer
     the Special Issue. If you determine, when giving effect to
     the mitigating evidence, if any, that a life sentence,
     rather than a death sentence, is an appropriate response to
     the personal responsibility of the defendant, you are
     instructed to answer the special issue under consideration
     “no.”

In his state habeas application, Heiselbetz argued that the trial

court’s actions violated the Eighth and Fourteenth Amendments.

With respect to the former, he contended that the court’s refusal

to give a separate special issue on mitigation violates the

requirement of Penry v. Lynaugh, 492 U.S. 302 (1989), that the

jury have an opportunity to give effect to mitigating factors.

The trial court’s actions also contravened the Fourteenth

Amendment’s guarantee of equal protection, Heiselbetz claimed,

because capital defendants who committed offenses on or after

September 1, 1991 are entitled to such a special issue under

Texas law.   The Texas Court of Criminal Appeals rejected these

arguments, concluding that (1) it had approved the instruction

given, and Heiselbetz had given no reason why its ruling should

be questioned or revisited, and (2) Heiselbetz’s jury was

instructed to consider mitigating evidence and, even if they had

                                16
not received such an instruction, his claim “cannot form the

basis for an equal protection challenge.”    Heiselbetz renews his

Eighth and Fourteenth Amendment arguments before us.    Because the

Texas Court of Criminal Appeals has adjudicated these claims on

the merits, however, we may grant a COA only under the limited

circumstances set out in 28 U.S.C. § 2254(d).

     We consider Heiselbetz’s Eighth Amendment claim first.    In

Emery v. Johnson, 139 F.3d 191 (5th Cir. 1997), cert. denied, 119

S. Ct. 418 (1998), we recently declined to grant habeas relief

where the applicant had received     an instruction almost identical

to Heiselbetz’s.   There, the jury was instructed:

     [Y]our answers to the Special Issues, which determine the
     punishment to be assessed the defendant by the court, should
     be reflective of your finding as to the personal moral
     culpability of the defendant in this case.
           When you deliberate about the questions posed in the
     Special Issues, you are to consider any mitigating
     circumstances supported by the evidence presented in both
     phases of the trial. A mitigating circumstance may be any
     aspect of the defendant’s background, character, and record,
     or circumstances of the crime, which you believe makes a
     sentence of death inappropriate in this case. If you find
     that there are any mitigating circumstances, you must decide
     how much weight they deserve and give them effect when you
     answer the special issues. If you determine, in
     consideration of this evidence, that a life sentence, rather
     than a death sentence, is an appropriate response to the
     personal moral culpability of the defendant, you are
     instructed to answer the Special Issue under consideration
     “No.”

Id. at 200.   The Emery court held that this instruction allowed

the jury to consider any appropriate mitigating circumstance and

required it not to sentence the defendant to death if a life

sentence was appropriate in light of his moral culpability.

Therefore, “[t]he instruction adequately addressed the [Penry]


                                17
Court’s concerns about Texas’s death penalty scheme by giving the

jury the ability to consider any appropriate mitigating

circumstance.”     Id.   As we noted above, this instruction differs

from Heiselbetz’s only in a few minor details, and although the

lower court cited Emery in denying relief, Heiselbetz does not

attempt to distinguish it.      Emery indicates that the state

court’s disposition of this issue is not contrary to Supreme

Court precedent.    Therefore, we cannot grant a COA on this issue.

     We now turn to Heiselbetz’s Fourteenth Amendment equal

protection claim.    Heiselbetz asserts that Texas defendants

convicted of a capital offense committed before September 1, 1991

are a quasi-suspect class.     Therefore, he reasons, Texas Code of

Criminal Procedure article 37.071, which requires trial courts to

submit a mitigation instruction only in the trials of capital

defendants who committed crimes on or after September 1, 1991,

must be subjected to strict scrutiny.     Article 37.071 provides

that during the sentencing procedure in a capital case for an

offense that was committed on or after September 1, 1991, the

trial court must instruct the jury that if it returns an

affirmative finding to the special issues, it must answer the

following: “Whether, taking into consideration all of the

evidence, including the circumstances of the offense, the

defendant’s character and background, and the personal moral

culpability of the defendant, there is a significant mitigating

circumstance or circumstances to warrant that a sentence of life

imprisonment rather than a death sentence be imposed.”     TEX. CODE.


                                   18
CRIM. PROC. art. 37.071, § 2(e), (i).   The trial court is not

required to give such an instruction when the capital offense for

which the defendant is to be sentenced was committed prior to

September 1, 1991.   Heiselbetz contends that this distinction

violates the Fourteenth Amendment.

     Heiselbetz has failed, however, to make a substantial

showing that the Texas Court of Criminal Appeals’ rejection of

his equal protection argument was contrary to Supreme Court

precedent or unreasonable.   We have held repeatedly that capital

defendants in general are not a suspect class.    See Woods, 75

F.3d at 1036; Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir.

1987).   Although Heiselbetz urges us to accord special class

status to a subset of this larger group--that is, Texas capital

defendants who committed offenses prior to September 1, 1991--we

can find no Supreme Court precedent requiring such a conclusion.

Nor have we been able to locate any Supreme Court case law

establishing that, if capital defendants who committed crimes

before September 1, 1991 are not a suspect class, the equal

protection clause prevents a state from prospectively modifying

its capital sentencing procedure as Texas did.    We therefore

cannot say that the state court’s determination was contrary to

clearly established federal law as determined by the Supreme

Court or an unreasonable application of precedent in that

“reasonable jurists considering the question would be of one view

that the state court ruling was incorrect.”    Trevino, 168 F.3d at




                                19
181 (quoting Drinkard, 97 F.3d at 769).   Accordingly, we decline

to issue a COA on this issue.

     7.   Factual Sufficiency of the Evidence

     Next, Heiselbetz claims that the evidence adduced at trial

was “factually insufficient” to support his capital murder

conviction rather than convictions for the murder of Jacy Rogers

and the voluntary manslaughter of Rena Rogers.   When Heiselbetz

raised the same argument in his state habeas application, the

Texas Court of Criminal Appeals ruled against him:   Citing Ex

parte Williams, 703 S.W.2d 674, 677 (Tex. Crim. App. 1986), it

held that claims of factual insufficiency of the evidence cannot

be raised in a collateral attack on a conviction.    On reviewing

the magistrate judge’s report and recommendation, the district

court noted that Heiselbetz’s sufficiency of the evidence claim

was procedurally barred.

     First, we must determine if the applicant has made a

credible showing that his claim is not procedurally barred.     See

Robison, 151 F.3d at 262.   Heiselbetz asserts that no procedural

default should be found because the case on which he bases his

claim, Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) (en

banc), was decided after his conviction became final.    Although

the Texas Court of Criminal Appeals held for the first time in

Clewis that Texas courts of appeals may review a conviction for

factual sufficiency and set out the standard of such review, it

also pointed out that it had “recently acknowledged in Bigby v.

State, 892 S.W.2d 864, 874 (Tex. Crim. App. 1994), the


                                20
‘considerable jurisprudence by this Court and our predecessors

with criminal jurisdiction which had continually recognized the

authority, though infrequently exercised, of the State’s highest

criminal court to review a case upon the facts as well as the

law.’”    Id. at 130 (quoting Bigby, 892 S.W.2d at 874) (footnote

omitted).    Moreover, as the Clewis court noted, Bigby observed

that the Legislature has consistently recognized the power of

criminal appellate courts to review a case for factual

sufficiency.    See id. at 130-31 (citing Bigby, 892 S.W.2d at 874-

75 n.5).    Even assuming that factual sufficiency review by the

Texas Court of Criminal Appeals became available for the first

time in Bigby, that case was decided on November 2, 1994, nearly

eight months before the same court rejected Heiselbetz’s direct

appeal.    Heiselbetz therefore cannot show cause for failing to

raise the factual sufficiency issue on direct appeal, as

Williams, 703 S.W.2d at 677, requires.    Because he has not made a

credible showing that his claim is not procedurally barred, we

decline to grant a COA on this issue.

     8.    Admission of Heiselbetz’s Statement

     Finally, Heiselbetz claims that the admission into evidence

of his July 1, 1991 statement violated his Fifth Amendment

privilege against self-incrimination and Sixth Amendment right to

the assistance of counsel.    Specifically, he argues that the

warnings he received prior to giving the statement were

insufficient to apprise him of his Fifth and Sixth Amendment

rights and that, therefore, his waiver of those rights was not


                                 21
knowing and voluntary.   The Texas Court of Criminal Appeals

adjudicated these claims and found (1) that Heiselbetz had been

fully warned in accordance with Miranda v. Arizona, 384 U.S. 436

(1966), and (2) that the standard Miranda warnings are adequate

to inform a suspect of both his Fifth and Sixth Amendment rights.

Therefore, under the AEDPA, we may grant relief only if this

decision was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),

or “based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding,” id.

§ 2254(d)(2).

     After reviewing the record and the applicable law, we

conclude that Heiselbetz is not entitled to a COA on these

issues.   We note first that neither party contests that, as the

state habeas trial court findings adopted by the Texas Court of

Criminal Appeals indicate, Heiselbetz was warned in accordance

with Miranda before he gave his July 1, 1991 statement.   Citing

Edwards v. Arizona, 451 U.S. 477, 487 (1981), however, Heiselbetz

argues that the Fifth Amendment requires law enforcement officers

also to warn a suspect that they may not re-initiate questioning

after the suspect has invoked his right to consult counsel before

further interrogation.   But while Edwards did state that “an

accused . . . , having expressed his desire to deal with the

police only through counsel, is not subject to further

interrogation by the authorities until counsel has been made


                                22
available to him, unless the accused himself re-initiates further

communication, exchanges, or conversations with the police,” id.

at 484-85, it did not require that law enforcement officers

recite its holding to suspects under interrogation.      Heiselbetz

has not cited, nor have we found, any Supreme Court case that

establishes such a rule.   We therefore conclude that the state

court adjudication as to Heiselbetz’s Fifth Amendment claim was

not contrary to Supreme Court precedent or unreasonable.

     The Supreme Court has held explicitly that the Miranda

warnings are sufficient to inform an accused of his Sixth

Amendment right to counsel.      See Patterson v. Illinois, 487 U.S.

285, 292-93 (1988).   Heiselbetz responds that Patterson was

wrongly decided.   Nevertheless, its existence demonstrates beyond

dispute that the state court decision on Heiselbetz’s Sixth

Amendment claim was neither contrary to clearly established

Federal law as determined by the Supreme Court nor an

unreasonable application thereof.       We decline to grant a COA on

Heiselbetz’s claims stemming from the admission of his July 1,

1991 statement.

                           IV.   CONCLUSION

     For the foregoing reasons, we DENY Heiselbetz’s request for

a COA.




                                   23
