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

                                      No. 17-70011
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 15, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
PAUL WAYNE SLATER,

                                                 Petitioner–Appellant,

versus

LORIE DAVIS, Director,
 Texas Department of Criminal Justice, Correctional Institutions Division,

                                                 Respondent–Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:14-CV-3576




Before JONES, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*

       Paul Slater, a Texas death row inmate, seeks a certificate of appeala-
bility (“COA”) under 28 U.S.C. § 2253(c)(2) to appeal the denial of his petition


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-70011
for writ of habeas corpus. We deny the request for a COA on all claims.

                                        I.
      In 1995, Eric Washington, Roddrick Martin, and Glenn Andrews drove
to Houston with $3,000 to purchase crack cocaine. They went to a carwash and
waited until a Cadillac with two men inside pulled into a bay. Martin and
Andrews got into the back seat of the Cadillac while Washington waited in the
car. Though the accounts differ on what happened next, Washington testified,
and forensic evidence supports, that one of the men in the Cadillac got out,
went to the trunk, and opened a backseat door. The driver then pulled a gun,
and the driver and other man began shooting. Martin and Andrews were
killed, and Washington fled without calling the police. Firefighters responding
to a call about gunfire found Andrews and Martin shot with 9mm and .367
or .38 bullets, with $200 in cash lying nearby.

      The following month, police stopped a Cadillac driven by Julius Woods.
The car contained evidence of blood, and there was a bullet hole in an interior
panel. Over a month later, Slater appeared at the police station and provided
a videotaped statement in which he admitted that he and Woods had met the
victims for a drug deal. He admitted shooting the victims with his 9mm pistol
but disclaimed any intent to rob or kill. Slater explained that one of the victims
drew a weapon and started shooting and that he shot back from the front pas-
senger seat. He stated Woods never fired a shot and that Washington may
have fired a weapon as well, which would explain the presence of two types of
bullets.

      The state charged Slater with capital murder during the course of a
robbery. Charles Freeman represented Slater at trial, using Slater’s confes-
sion as the foundation for the defense. Though initially the strategy centered
on self-defense, with Slater claiming he did not shoot until one of the buyers
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                                  No. 17-70011
pulled a weapon, Freeman did not request a jury instruction on murder as a
lesser-included offense, which was required for the jury to be instructed on self-
defense.

      The state used Slater’s confession, Washington’s eyewitness testimony,
and evidence from the scene. Washington testified that the buyers did not have
weapons and that Martin carried money in the front of his shorts, though police
never recovered any cash from his body. Washington saw one of the men in
the Cadillac get out and open the trunk. He then became distracted until he
heard shooting. At that point he saw the driver firing a pistol into the back
seat, and the passenger was outside the car firing into the back door.

      This is confirmed by forensic evidence. Two different weapons fired the
bullets recovered from the autopsies, and the trajectory of the bullet strikes
refuted Slater’s description of shooting from the passenger seat.

      A jury found Slater guilty of capital murder for intentionally causing the
death of Martin during the course of a robbery or attempted robbery. The jury
then answered three special interrogatories in a manner requiring the im-
position of the death penalty.

      The conviction and sentence were affirmed on direct appeal. Slater v.
State, No. AP-72, 623 (Tex. Crim. App. Apr. 15, 1998) (unpublished). On a
state habeas application, Slater raised sixteen claims, which were denied by
the trial court. The Texas Court of Criminal Appeals adopted the state court’s
findings and conclusions, denying the habeas application. Ex parte Slater,
No. WR-78,134-01, 2014 WL 6989189 (Tex. Crim. App. Dec. 10, 2014)
(unpublished).

      Slater filed his federal habeas petition in 2015. The district court denied
all relief, granted summary judgment to the state, and denied a COA. Slater

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                                  No. 17-70011
appeals the denial of a COA on four claims, two of which were adjudicated on
the merits in state court and two of which were unexhausted in the state court
and thus procedurally barred.

                                        II.
      A federal court may issue a COA only when “the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). The imposition of the death penalty alone is insufficient for the
issuance of a COA, but any questions will be resolved in the petitioner’s favor.
Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).

      Slater asks for a COA on the district court’s disposition on the merits of
his two ineffective-assistance-of-trial-counsel (“IATC”) claims. Where a consti-
tutional claim was rejected on the merits, the petitioner must show that rea-
sonable jurists would find the district court’s assessment of the claims “debata-
ble or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because the state
trial court adjudicated these claims on the merits, the district court reviewed
the decision under Strickland v. Washington, 466 U.S. 668 (1984), and asked
whether the state court decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law . . . or resulted in a decision that
was based on an unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

      Under Washington, a defendant is denied his Sixth Amendment rights
when his attorney’s performance “falls below an objective standard of reason-
ableness and thereby prejudices the defense.” Yarborough v. Gentry, 540 U.S.
1, 3 (2003). Judicial assessment of performance is “highly deferential” and
must attempt to eliminate “the distorting effects of hindsight.” Washington,
466 U.S. at 689. Thus federal relief is allowed only where counsel’s decision on
trial tactics and strategy is “so ill chosen that it permeates the entire trial with
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                                       No. 17-70011
obvious unfairness.” Cotton v. Cockrell, 343 F.3d 746, 753 (5th Cir. 2003). Pre-
judice requires showing there is “a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding would have been differ-
ent.” Washington, 466 U.S. at 694. Because jurists of reason would not find
the district court’s assessment of Slater’s IATC claims debatable or wrong
under this standard and § 2254(d), we deny the COA on these claims.

                                             A.
       Slater first claims IATC at the guilt-innocence phase. He posits that his
lawyer should have requested a jury instruction on the lesser-included offense
of murder, which would have allowed the jury also to receive an instruction on
self-defense.

       Though the state court decided this claim on the merits, Slater asserts it
is effectively unexhausted because the district court failed to consider new evi-
dence he presented for the first time on federal review. 1 Under Cullen v. Pin-
holster, 563 U.S. 170 (2011), however, the district court is confined to reviewing
the record before the state habeas court. Id. at 185. Consistent with Pinholster
and binding under the rule of orderliness are Ibarra v. Thaler, 691 F.3d 677
(5th Cir. 2012), vacated in part on other grounds, 723 F.3d 599 (5th Cir. 2013),
and Clark v. Thaler, 673 F.3d 410 (5th Cir. 2012). Those hold that, even if new
evidence would be considered unexhausted, our task is to consider “only the
record that was before the state habeas court.” Clark, 673 F.3d at 417; see also
Ibarra, 691 F.3d at 682.

       Slater asserts that Freeman was ineffective in not requesting an



       1Slater presented newspaper articles about Freeman’s background, an affidavit Free-
man submitted in a different case five months after his trial explaining he thought attorneys
should make most trial decisions, and an affidavit from a state trial judge stating that Free-
man was incompetent, dishonest, and unethical.
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                                 No. 17-70011
instruction on the lesser-included offense of murder, which would have allowed
the jury to receive an instruction on self-defense. Freeman filed an affidavit in
which he stated he made this decision in deference to Slater’s preference to
take an all-or-nothing approach, hoping the jury would find the evidence insuf-
ficient to support the robbery element of capital murder. Then Slater would
go free rather than giving the jury the “easier” option of convicting him of mur-
der. Freeman died two years after filing the affidavit. Slater did not file his
affidavit until ten years after Freeman had died.

      Slater has not presented clear and convincing evidence that would rebut
the state court’s finding that Freeman’s affidavit was reliable and Slater’s was
not credible. See 28 U.S.C. § 2254(d)(1). Nor has he shown that the district
court’s finding under Washington is debatable among jurists of reason.

      The State’s evidence rebuts Slater’s contention that a self-defense in-
struction would have resulted in a reasonable probability of acquittal on this
ground. The evidence supporting self-defense is Slater’s videotaped statement,
the same evidence that he presented to negate the robbery element of capital
murder and that the jury found unconvincing. Slater v. Texas, No. 72,623,
at 36 (Tex. Crim. App. Nov. 17, 2015). Further, the record reflects that Free-
man and Slater had a lengthy discussion about what request the defense
should make for jury instructions. An all-or-nothing approach does not fail
Washington, even given the risks it entails. Druery v. Thaler, 647 F.3d 535,
539–40 (5th Cir. 2011).    The district court’s finding in this regard is not
debatable.

      Nor is it debatable that Freeman was permitted, if not required, to follow
Slater’s decision. Autry v. McKaskle, 727 F.2d 358, 362 (5th Cir. 1984). A pre-
trial psychological evaluation did not reveal evidence of “a mental disease or
mental defect on or about the time of the alleged offense.” And a “competency

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                                      No. 17-70011
evaluation found that Slater understood the rudimentary concerns of his crim-
inal trial.” Thus, in light of the record at the state habeas court, the district
court’s finding on the merits is not debatable.

         Slater attempts to circumvent the Pinholster bar by presenting a new
claim of ineffective assistance of his state habeas counsel under Martinez v.
Ryan, 566 U.S. 1 (2012), asserting that counsel was ineffective in not procuring
and presenting the new evidence to the district court. “Where, as in Texas,[ 2]
the state procedural framework makes it highly unlikely that a defendant will
have a meaningful opportunity to raise on direct appeal a claim of ineffective
assistance at trial,” the federal court is not barred from hearing the claim if
counsel in the initial-review stage was ineffective. Garza v. Stephens, 738 F.3d
669, 676 (5th Cir. 2013). Thus, if Slater can show that his claim of IATC has
some merit and that his state habeas counsel was ineffective under Washing-
ton for failing to present new evidence on that claim, he can overcome cause
and prejudice such that we can consider the new evidence. Martinez, 566 U.S.
at 14.

         Under that standard, however, Slater cannot show that his underlying
claim has merit. Even considering his new evidence, the record and the district
court’s opinion laid out sufficient factual support that make it undebatable
among jurists of reason that the district court properly applied Washington
and § 2254(d) to Slater’s underlying claim addressing Freeman’s conduct at
trial. Because the new evidence would not change the determination of the
ineffective-assistance or prejudice inquiry, Slater’s state habeas counsel cannot
be considered ineffective under Washington for failing to present it. Because


         Although Texas law does allow a defendant to raise a claim of IATC on direct appeal,
         2

the Supreme Court has held that the Martinez exception applies because Texas makes it
“virtually impossible” to do so. See Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013) (quoting
Robinson v. State, 16 S.W.3d 808, 811 (Tex. Crim. App. 2000).
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                                  No. 17-70011
the district court’s findings on this issue are not debatable among jurists of
reason, we deny a COA on this claim.

                                       B.
      Slater claims IATC at the punishment stage because his attorney did not
present evidence of his organic brain impairment and learning disabilities. He
also alleges ineffective assistance of state habeas counsel for not pursuing fur-
ther testing, for not presenting certain school records to the state habeas court,
and for not challenging Freeman’s closing summation.

                                        1.
      At his state habeas proceeding, Slater introduced three new pieces of
evidence to support his claim of Freeman’s IATC: a 1998 evaluation by Dr.
Walter Quijano showing a cognitive and learning disorder and recommending
further testing; a 1991 evaluation by Dr. John Largen revealing an IQ of 77,
finding memory impairments and diminished academic function, and stating
that Slater’s test results were “commensurate with the presence of organic
brain impairment”; and an affidavit from Slater’s mother stating that Freeman
never asked about Slater’s head injury or educational problems. Attached to
the affidavit was a school report showing that at age twelve Slater functioned
at a second- or third-grade level.

      Under Washington, “counsel has a duty to make reasonable investiga-
tions or to make a reasonable decision that makes particular investigations
unnecessary. In any ineffectiveness case, a particular decision not to investi-
gate must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.” Washington,
466 U.S. at 691.

      The state habeas court found, and the district court agreed, that

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                                         No. 17-70011
Freeman adequately investigated Slater’s possible mental-health issues and
learning disability. Though further investigation may have added support to
this claim, it would not have uncovered anything that was not available to
Freeman at trial. Freeman had access to reports on Slater’s mental condition,
including a pre-trial clinical report by Dr. Edward Silverman and records from
Orchard Creek Hospital. Silverman’s report mentioned Slater’s head injury
and acknowledged prior IQ scores ranging from 63 to 80. The report concluded
that there was no evidence that would have kept Slater from ascertaining the
wrongfulness of his conduct.             The hospital records also “produced mixed
results.” 3

       Freeman stated he then made the strategic call that the mixed evidence
could be aggravating rather than mitigating. The decision not to present such
mixed evidence has been found reasonable in several other cases. See, e.g.,
Rodriguez v. Quarterman, 204 F. App’x 489 (5th Cir. 2006); Hopkins v. Cock-
rell, 325 F.3d 579 (5th Cir. 2003). This led the state habeas court to conclude
that Freeman was not ineffective for failing to present the evidence to the jury.

       That decision was unaltered by the state habeas court’s analysis of the
three additional pieces of evidence mentioned above. The evidence was cumu-
lative and differed “only in detail, not in mitigating thrust” 4 from the evidence
Freeman already had. Given the deference owed to counsel’s strategic decision,
and that the available evidence presented a “double-edged sword,” we decline
to issue a COA on this claim.

       Slater also presented two new pieces of evidence in the district court, an
evaluation from neuropsychologist Paul Schulz and additional school records.



       3   Slater v. Davis, No. 4:14-cv-3576, 2017 WL 1194374, at *29 (S.D. Tex. Mar. 30, 2017).
       4   Id. at *15.
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                                 No. 17-70011
But because of the bar of Pinholster, we do not consider that evidence. Even if
we looked at it under Martinez as Slater urges, it would not alter the conclusion
about Freeman’s performance. The new evidence is cumulative of information
contained in previous school reports and in Quijano’s evaluation.

      As the district court noted, Slater does not suggest a reasonable proba-
bility of a different result had Freeman prepared a different defense. The jury
was presented with extensive evidence of future dangerousness: Slater was
caught selling crack cocaine; he shot a teenage boy at a church event; during a
traffic stop Slater was in the back seat with a machine gun and a revolver; and
he was found pawning electronics from a burglarized home. The jury also con-
sidered testimony from Slater’s mother about his head injury and school per-
formance as mitigating evidence. In the face of this evidence, jurists of reason
would not find the district court’s disposition of this claim debatable.

                                       2.
      Nor was Slater’s state habeas counsel ineffective in failing to challenge
Slater’s summation at the punishment stage. Because this claim was not
raised in the state habeas proceeding, Slater alleges ineffective assistance of
state habeas counsel for failure to raise it. We ask whether Slater has dem-
onstrated cause and actual prejudice to overcome the procedural default of this
claim. See Coleman v. Thompson, 501 U.S. 722, 745 (1991). We evaluate cause
under Washington. See Martinez, 566 U.S. at 14. Additionally, where “a peti-
tioner brings a [Washington] claim under the AEDPA, [t]he pivotal question is
whether the state court's application of the [Washington] standard was un-
reasonable.” Garza, 738 F.3d at 674. Because the district court’s denial of
habeas relief on this claim is not debatable among jurists of reason, we decline
to issue a COA.

      Although Freeman’s berating of the jury was unprofessional, that alone
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                                     No. 17-70011
does not meet the standard. Cause is not satisfied just because habeas counsel
failed to raise every nonfrivolous claim. Rather, counsel has the freedom to
select among the claims “to maximize the likelihood of success on appeal.” Vas-
quez v. Stephens, 597 F. App’x 775, 780 (5th Cir. 2015) (quoting Smith v.
Robbins, 528 U.S. 259, 288 (2000)). To show actual prejudice, a petitioner must
demonstrate that errors “infect[ed] his entire trial with error of constitutional
dimensions.” Moore v. Quarterman, 534 F.3d 454, 463 (5th Cir. 2008) (internal
quotation omitted).

      That did not occur here. Slater’s habeas counsel was not deficient in
failing to raise this claim, and the underlying merit would not have altered the
outcome of the habeas proceeding. Though a less than stellar performance,
Freeman’s summation raised issues of residual doubt by revisiting the issue of
Slater’s low IQ raised in the guilt-innocence phase. Because it cannot be said
that Freeman’s conduct “undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result,” we
decline to issue a COA. See Washington, 466 U.S. at 686.

                                           III.
      Slater challenges the denial of his motion to stay and abate so that he
could raise unexhausted claims in state court and could present new evidence
for the exhausted claims. 5 Procedural default “occurs when a prisoner fails to
exhaust available state remedies and the court to which the petitioner would
be required to present his claims in order to meet the exhaustion requirement
would now find the claims procedurally barred.” Bagwell v. Dretke, 372 F.3d


      5   The unexhausted claims are IATC for Freeman’s closing argument, the failure of
Slater’s habeas counsel to challenge Freeman’s closing summation, and the unconstitution-
ality of the death penalty. The exhausted claims are Freeman’s IATC for not requesting the
murder instruction and not presenting mitigating evidence on Slater’s organic brain impair-
ment and learning disabilities.
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748, 755 (5th Cir. 2004). Where the district court denies a COA for a claim
based on procedural grounds, the petitioner must show that “jurists of reason
would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack, 529 U.S.
at 484; Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).

      Permission to return to state court is a safety valve for unexhausted
claims and, as such, is limited to situations where the district court finds “that
there was good cause for the failure to exhaust the claim; that the claim is not
plainly meritless; and there is no indication that the failure was for the pur-
poses of delay.” Williams v. Thaler, 602 F.3d 291, 309 (5th Cir. 2010); see also
Rhines v. Weber, 544 U.S. 269, 277–78 (2005). Further, the petitioner must
show that he has remedies under state law.

                                       A.
      It is not debatable that Slater lacks a remedy under Texas law, so the
district court’s procedural ruling is not debatable. Texas courts will not con-
sider a subsequent application for post-conviction relief unless the claims
   could not have been presented previously in a timely initial appeal . . . ;
   but for a violation of the United States Constitution no rational juror
   could have found the applicant guilty beyond a reasonable doubt; or . . .
   but for a violation of the United States Constitution no rational juror
   would have answered in the state’s favor one or more of the special
   issues.
TEX. CODE CRIM. PROC. art. 11.071 § 5(a). Slater could have raised all of these
claims in his initial state habeas proceeding, except the claim of ineffective
assistance of his habeas counsel that is addressed above.

      Contrary to Slater’s federalism concerns, it is the district court’s role to
examine state law to determine whether Slater met the requirements for a

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                                  No. 17-70011
stay. This was not an abuse of the district court’s discretion. Under Martinez,
the court is required to address whether the underlying claims have merit. If
a claim is procedurally barred in state court, it is meritless. Williams, 602 F.3d
at 309. Thus, the court properly exercised its discretion in looking to Texas
law to determine that Slater lacks a remedy in state court.

                                       B.
      In addition to the findings of procedural default, Slater’s ineffective-
assistance claims have been addressed at length above. Though the district
court properly found Slater’s death-penalty challenge procedurally barred, we
also affirm the district court’s alternative finding that the claim lacks merit.
Jurists of reason would not find it debatable that current law does not support
Slater’s claim of unconstitutionality, and we therefore decline to issue a COA
on this claim.

      In sum, the district court’s disposition of Slater’s merits claims is not
debatable. Further, jurists of reason could not debate whether the district
court properly found his unexhausted claims procedurally barred. The motion
for a COA is in all respects DENIED.

                                  * * * * *



JAMES L. DENNIS, Circuit Judge, concurring in the judgment:
      Although I ultimately agree that Slater has not shown he is entitled to a
COA, several disagreements prevent me from joining the majority opinion in
full. The majority opinion rejects Slater’s ineffective assistance of counsel
claim as it relates to counsel’s guilt-phase performance in part because, even
considering evidence submitted for the first time in support of his federal
habeas petition, “the district court properly applied [Strickland v. Washington,

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                                  No. 17-70011
466 U.S. 668 (1984),] and [28 U.S.C.] § 2254(d) to Slater’s underlying claim.”
Op. at 7. However, we may only consider Slater’s new evidence under Cullen
v. Pinholster, 563 U.S. 170, 185 (2011), if the underlying claim was not
“adjudicated on the merits.” If a claim is not adjudicated on the merits, to the
extent we can consider it, our review is de novo. E.g., Cone v. Bell, 556 U.S.
449, 472 (2009).     Contrary to the majority opinion’s implication, then,
proceeding under the assumption that the claim was not adjudicated on the
merits, we would only consider Slater’s new evidence under a de novo standard.
Under the majority’s assumptions, and applying a de novo standard, I cannot
agree that Slater’s claim is meritless beyond debate.
      Nonetheless, even assuming, arguendo, that there is an exception to
Pinholster for claims that are “fundamentally altered” by evidence presented
for the first time in federal court, reasonable jurists would not debate whether
the evidence Slater has submitted fundamentally alters his claim: at most,
Slater’s additional evidence, which only speaks to the credibility of trial
counsel’s affidavit provides additional evidentiary support for Slater’s claim
that was already presented and adjudicated in the state court proceedings. See
Escamilla v. Stephens, 749 F.3d 380, 395 (5th Cir. 2014) (declining to find
exception to Pinholster where petitioner “merely provided additional
evidentiary support for his claim that was already presented and adjudicated
in the state court proceedings”). I therefore conclude that Slater has not shown
that jurists of reason would debate the correctness of the district court’s refusal
to consider the additional evidence and would deny a COA for this reason.
      For a similar reason, I would decline to consider Slater’s new evidence in
support of his penalty-phase Strickland claim. The new evidence presented in
support of this claim is cumulative of information presented to the state habeas
court; thus, reasonable jurists would not debate whether it “fundamentally
alters” the claim. Cf. Escamilla, 749 F.3d at 395.
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                                  No. 17-70011
      Finally, with respect to Slater’s argument that trial counsel’s summation
was deficient, the majority opinion’s reasoning contravenes Martinez v. Ryan,
566 U.S. 1, 17 (2012), to the extent it suggests that a petitioner has an
additional burden beyond establishing that his state habeas counsel was
ineffective and that he has “a substantial claim of ineffective assistance at
trial.” However, Slater’s only argument that counsel’s summation prejudiced
his defense is the conclusory statement: “[t]he jurors conceivably answered the
special issues in a manner that ensured a death sentence because [counsel]
insulted their integrity and intelligence.” And Slater fails to explain in his
motion for a COA how state habeas counsel rendered ineffective assistance by
failing to raise the ineffective summation claim. Because Slater has not shown
that state habeas counsel was deficient or that counsel’s closing remarks
affected the outcome of his trial, I concur in the denial of a COA for this claim.




                                       15
