                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                   UNITED STATES COURT OF APPEALS
                        for the Fifth Circuit                  May 24, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-70018


                          JOHNATHAN MOORE,

                                              Petitioner-Appellant,


                               VERSUS


                       DOUG DRETKE, DIRECTOR,
               TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                 CORRECTIONAL INSTITUTIONS DIVISION,

                                               Respondent-Appellee.




           Appeal from the United States District Court
                 for the Western District of Texas
                          (SA-02-CV-0579)


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

      Petitioner Johnathan Bryant Moore was convicted in Texas state

court of capital murder and sentenced to death. After exhausting

all available state remedies, Moore filed a petition for federal

habeas corpus relief in the U.S. District Court for the Western

District of Texas, claiming that he received ineffective assistance


  *
   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opinion should not be published and is not precedent except under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.
of counsel in violation of the Sixth Amendment and that he was

sentenced to death in violation of the Seventh Amendment. The

district   court   denied   the   petition   and   declined   to   issue   a

certificate of appealability (COA). Moore now requests that this

Court grant a COA as to his ineffective assistance of counsel claim

pursuant to 28 U.S.C. § 2253(c)(2). For the reasons stated below,

we deny Moore’s Application for a Certificate of Appealability.

                             I. Background

     In October 1996, Petitioner Moore was convicted of capital

murder for the shooting of San Antonio police officer Fabian

Dominguez and sentenced to death. The facts of the murder, as

summarized by the Texas Court of Criminal Appeals (TCCA) on direct

appeal, are as follows:

          On January 15, 1995, at approximately 5:00 a.m., San
     Antonio police officer Fabian Dominguez went off duty and
     began driving home in his personal vehicle. Officer
     Dominguez lived in San Antonio with his wife and infant
     twin daughters. Officer Dominguez was a few blocks from
     home when he noticed suspicious activity at the residence
     of William Braden. Based on what Officer Dominguez
     observed, he took action to investigate what appeared to
     be a burglary in progress. When he pulled into the Braden
     driveway, blocking in the suspects’ vehicle, Paul
     Cameron, Pete Dowdle, and [Moore] were concluding their
     second trip to burglarize the Braden home.
          In his voluntary written statement to Detective
     James Holguin, [Moore] described the sequence of events
     leading up to the murder of Officer Dominguez.
          For some dumb reason we decided to go back to
          the house on Country Flower. We went in Pete's
          grandmother's car. . . . Pete drove. I was in
          the front passenger side of the car and Paul
          was in the backseat. Pete backed the car into
          the driveway. Pete stayed out in the car. We
          had accidently left the front door wide open
          the first time. Me and Paul went in through

                                    2
     the front door. We didn’t have any problem
     with the dog. All three of us were wearing
     gloves again. We had left some guns and a
     compound bow were left (sic) from the first
     time. We got those things. Me and Paul decided
     to split form (sic) the inside. We walked
     outside and we saw a car passing by. The car
     stopped and I saw the reverse lights come on.
     We all got into the car. Pete was behind the
     wheel. I was in the front passenger seat and
     Paul was in the backseat. The car pulled into
     the driveway and pretty much blocked us in.
     The police officer got out of the car and had
     his gun pointing at Pete. I could see that
     this guy was wearing a police uniform. The
     officer said get out of the car now. I had my
     window rolled down. The officer kept repeating
     “get out of the car”. . . . I kept telling
     Pete let’s split but he would not do it. By
     the time the officer walked up to the car and
     had the gun pointed at my head. (sic) The
     officer was on the passenger side of Pete’s
     car. The officer told Pete to give him the car
     keys and Pete gave it to him. I scooted the
     officer’s pistol away and I pulled out my gun
     and shot at him. I believe I shot at him three
     times. The officer fell to the ground. I
     already had my gun in my hand when the officer
     walked up. My gun is a .25 caliber automatic.
     It’s plated and it’s a Lorcin brand. After I
     shot the officer his gun fell into the front
     rear seat of Pete’s car. I got out of the car
     and I got the car keys and gave them to Pete.
     I got the officer’s gun and shot the officer
     three times in the head. I got back in the car
     and Pete split. Paul was in the backseat
     during the whole time. Pete didn’t want to get
     into trouble after I shot the cop so he drove
     away.
     Neighbors across the street heard gunfire coming
from the Braden home. Upon receiving a 911 call, police
and emergency personnel were immediately dispatched.
Officer Dominguez was dead by the time firemen arrived on
the scene. The coroner later determined that Officer
Dominguez died from multiple gunshot wounds to the head.
Ballistics established that the wounds were inflicted by
one shot from [Moore]’s .25 caliber handgun, and three
shots from Officer Dominguez's .40 caliber service
weapon.

                           3
           After leaving the scene of the crime, [Moore],
      Cameron, Dowdle, and [Moore]’s girlfriend, Meredith
      Nichols, traveled to a plot of land near Pipe Creek,
      Texas, where they disposed of both murder weapons and the
      items stolen from the Braden residence.
           The following day [Moore] was developed as a suspect
      in the burglary. He was subsequently located and seen
      driving a vehicle that belonged to Nichols. Nichols was
      a passenger in the vehicle. While under police
      surveillance,   [Moore]   committed    numerous   traffic
      violations. When police officers signaled him to pull to
      the side of the road, a high speed chase ensued. Twenty
      miles later, [Moore] and Nichols were captured after
      [Moore] careened to the side of the road. After a brief
      struggle, San Antonio police officers arrested [Moore]
      and took him into custody. In his voluntary statement to
      Detective Holguin [Moore] explained his flight from
      authorities, stating, “I figured pretty much that the
      cops knew that I was the one that shot the cop.”

Moore v. State, 999 S.W.2d 385, 391-92 (Tex. Crim. App. 1999).

      On direct appeal to the TCCA, Moore raised thirty-seven points

of error. The TCCA found no error and affirmed his conviction and

sentence. Moore’s petition for writ of certiorari to the U.S.

Supreme Court was denied. Moore subsequently filed an application

with the Texas trial court for a writ of habeas corpus, raising

eighteen grounds for habeas relief. After holding an evidentiary

hearing,     the   convicting   court       entered   findings   of   fact   and

conclusions of law recommending that Moore’s application be denied.

The   TCCA   adopted   the   convicting       court’s   recommended    factual

findings and legal conclusions and denied Moore’s request for

habeas relief.

      Moore subsequently filed a petition for a writ of habeas

corpus in federal district court. In his petition, he raised only



                                        4
two grounds for relief, both of which were previously raised before

the state habeas court: (1) that he received ineffective assistance

of counsel in violation of the Sixth Amendment; and (2) that he was

sentenced to death in violation of the Seventh Amendment. The

district court denied relief and declined to issue a COA. Moore

thereafter filed an Application for a Certificate of Appealability

with this Court. He only seeks a COA as to the ineffective

assistance of counsel claim.

  II. Facts Relating to Ineffective Assistance of Counsel Claim

      Moore’s        central     claim       is     that     he     received        ineffective

assistance      of     counsel     at       trial     because        his     court-appointed

attorneys failed to present sufficient available evidence--namely,

the testimony of defense experts--to the trial judge to support

their request that a jury be empaneled to determine whether Moore

was competent to stand trial. The facts relevant to this claim are

drawn   from    the     pretrial      proceedings,           the     guilt-innocence       and

punishment phases of trial, and the post-conviction proceedings.2

      Pretrial, at a suppression hearing, Moore’s court-appointed

counsel,   John        Convery     and       Ronald        Guyer,     made     an    ex   parte

application to the trial court for an examination of Moore on his

competency to stand trial. Counsel asked the court to consider, in

deciding   whether       to    hold     a    competency           hearing,    inappropriate


  2
   We summarize the well-stated facts presented in the district
court’s order, Moore v. Dretke, No. SA-02-CA-0579 (W.D. Tex. Mar.
22, 2005), which reflect the state habeas court’s findings of fact.

                                               5
outbursts     and   comments   made    by    Moore     during    the   suppression

hearing,      Moore’s      history     of      mental     illness,       including

hospitalization and treatment at a mental health facility, and

counsel’s general impression that Moore was not competent and did

not   understand     the   proceedings      against     him.    The    court   found

insufficient evidence to necessitate a competency hearing, but, “in

an abundance of caution,” appointed Dr. Michael Arambula to examine

Moore and give the court an opinion as to Moore’s competency.

      Dr. Arambula examined Moore, but he never gave the trial court

an opinion as to Moore’s competency; rather, he and his colleague,

Dr. Margot Zuelzer, who also examined Moore, made reports only to

Moore’s counsel. While equivocal, they both reported that they felt

Moore was competent to stand trial. The only report on competency

submitted to the trial court was one prepared by Dr. John Sparks,

a   psychiatrist     appointed   for     the    State    to     evaluate   Moore’s

competency, sanity, and future dangerousness after Moore’s counsel

notified the court during voir dire of their intention to raise

insanity as a defense. Dr. Sparks stated in his report that he

thought Moore was competent to stand trial.

      When trial commenced, Moore tried to discharge his attorneys,

expressing concern about being represented by lawyers who were

“paid   for    by    the   State.”     The     trial     court    discussed      the

inadvisability of self-representation with Moore and gave him time

to meet with his attorneys over lunch to reassess whether he wanted

to discharge them. After lunch, Moore indicated that he would

                                        6
proceed with Guyer and Convery as counsel. Moore’s competency was

not raised again at this time.

     Moore’s chief defense at trial was insanity. His counsel put

Doctors Arambula and Zuelzer on the stand to testify as to Moore’s

mental state at the time of the offense. They both testified that

Moore suffered from schizoaffective disorder and that his illness

was severe, rendering him insane at the time he shot Officer

Dominguez. Neither doctor was asked on the stand about Moore’s

competence to stand trial. The State called Dr. Sparks and another

doctor--who evaluated detainees, including Moore, at the Bexar

County Jail--on rebuttal, and they testified that Moore suffered

from dysthymia, a minor depression, and possibly a borderline

personality disorder and that his illness did not render him

legally insane at the time of the shooting. Neither doctor called

by the State was asked on the stand about Moore’s competence to

stand trial. At the conclusion of the guilt-innocence phase of the

trial, the jury rejected Moore’s insanity defense and found Moore

guilty of capital murder.

     At   the   punishment    phase   of   trial,    Moore   again    tried    to

discharge his attorneys. This time, Moore was not persuaded by the

court’s     admonition    regarding        the    advisability       of   self-

representation;     he   insisted     on    representing     himself.     After

inquiring    into   Moore’s    ability     to    choose   intelligently       and

voluntarily to self-represent, the trial court warned Moore about

the dangers of self-representation, noted that the record reflected

                                      7
that he was mentally competent, and permitted him to proceed

without counsel. Guyer and Convery, whom the court appointed as

standby counsel in the event that Moore demonstrated an inability

to represent himself, moved at this time for a competency hearing

under Texas Code of Criminal Procedure article 46.02.3 However,

they did not present any new evidence regarding competence, relying

instead on the insanity evidence presented at trial and Moore’s

insistence on representing himself. Denying Guyer and Convery’s

motion, the trial court emphasized that Dr. Sparks had filed a

report with the court stating his opinion that Moore was competent

to stand trial and that a desire to self-represent did not in and

of itself suggest that Moore was incompetent. Later that day, Guyer

and Convery renewed their request for a competency hearing. The

trial court again denied their request, stating that it had heard

no evidence suggesting that Moore was incompetent.4

      Moore represented himself during the first two days of the

punishment phase of trial, asking relevant questions and obtaining

favorable rulings on objections. On the second day, Moore decided

  3
    Article 46.02 provided at that time,
   If during the trial evidence of the defendant's incompetency
   is brought to the attention of the court from any source, the
   court must conduct a hearing out of the presence of the jury
   to determine whether or not there is evidence to support a
   finding of incompetency to stand trial.
TEX. CODE CRIM. PROC. art. 46.02, § 2(b) (West 1996).
  4
   The record shows that Guyer informed the trial court that
“[counsel] might present Dr. Arambula on this matter,” but after a
brief recess advised the court that “[counsel is] not prepared to
go forward on that at this moment.”

                                8
to discontinue self-representation, and Guyer and Convery were

reinstated as counsel. Counsel then moved for a mistrial, based in

part on evidence of Moore’s competency. The motion was denied.

Counsel continued to represent Moore throughout the remainder of

his trial. On October 25, 1996, Moore was sentenced to death.

     On appeal to the TCCA, Moore’s conviction and sentence were

upheld. Addressing one of many points of error, the TCCA found that

Moore was competent to stand trial and that the combination of

Moore’s courtroom outbursts, his mental health history, his self-

representation, and nonspecific concerns about his ability to

communicate with his attorneys did not raise a bona fide doubt as

to his competency such that a competency hearing was warranted in

the court below. The Supreme Court denied Moore’s petition for writ

of certiorari.

     Finally, Moore filed an application for a writ of habeas

corpus with the Texas trial court, arguing, in part, that he was

convicted and sentenced while incompetent and that he received

ineffective   assistance   of   counsel.   The   court   conducted   an

evidentiary hearing and took testimony from Moore’s trial counsel

and Doctors Arambula and Zuelzer regarding Moore’s competency and

the effectiveness of his counsel. Convery and Guyer testified that

throughout trial, it became increasingly difficult to communicate

with Moore. Convery testified that he suspected Moore was mentally

ill from the first time he met him; Guyer similarly testified that

he initially suspected Moore was mentally ill and had a difficult

                                  9
time getting Moore to talk to him about the crime. The lawyers’

testimony shows that they disagreed about when to bring evidence of

Moore’s incompetency to the attention of the court. Convery wanted

to present competency as an issue right away, whereas Guyer wanted

to delay bringing forward evidence of incompetency until after they

presented Moore’s insanity defense. However, Guyer testified that

by the time of jury selection, Moore had begun to cooperate with

his attorneys and they had enough information to proceed. Doctor

Arambula testified that he found Moore competent to stand trial

when he examined him in May 1996, but he noted that he was

concerned Moore could decompensate and shared that concern with

Moore’s counsel. Dr. Arambula further testified that under a

hypothetical situation in which Moore’s paranoia and delusions

caused him to become so suspicious of his attorneys that he refused

to communicate with them, kept his head down, flipped through

magazines and books during trial, and eventually chose to represent

himself, he could have testified that Moore was incompetent.

However,   Dr.    Arambula   noted    that   he    had    only    reached    this

conclusion just prior to the writ hearing. Dr. Zuelzer similarly

testified that she was concerned about Moore’s competence and that

she communicated her concerns to Dr. Arambula, although not to

Moore’s attorneys. Dr. Zuelzer further testified that after hearing

about   Moore’s   conduct    during   trial,      she    felt    he   had   become

incompetent. The state habeas court recommended that the TCCA deny

all claims for relief, concluding that Moore had failed to prove

                                      10
that he was incompetent in fact and failed to establish either

deficient performance or prejudice under Strickland v. Washington,

466 U.S. 668 (1984). According to the court, Moore’s counsel were

not deficient in raising Moore’s competency because the state writ

hearing testimony of Moore’s defense experts--which Moore claimed

would have raised a bona fide doubt as to his competency--was not

reasonably available to counsel during trial; moreover, their

performance did not prejudice Moore’s defense because he failed to

establish that he was incompetent in fact. The TCCA adopted the

state habeas court’s findings of fact and conclusions of law and

denied all claims for relief. Moore timely filed a petition for a

writ of habeas corpus with the U.S. District Court for the Western

District of Texas on December 31, 2002. That court also denied

relief, finding that the TCCA’s determination regarding Moore’s

ineffective assistance of counsel claim was not contrary to and did

not involve an unreasonable application of clearly established

federal law under 28 U.S.C. § 2254(d)(1) because his counsel’s

performance   was   not   deficient    and   their   performance   was   not

prejudicial. The district court agreed that Moore’s failure to

establish that he was incompetent in fact decided the prejudice

issue, citing Carter v. Johnson, 131 F.3d 452 (5th Cir. 1997). The

district court concluded that Moore was not entitled to a COA

because there was no basis for disagreement among jurists of reason

regarding the court’s disposition of the ineffective assistance of


                                      11
counsel claim. Moore asks us to grant a COA and ultimately reverse

the district court’s denial of habeas relief.

                            III. Discussion

     Moore filed his federal petition for a writ of habeas corpus

after the effective date of the Antiterrorism and Effective Death

Penalty Act (AEDPA). Accordingly, his petition is subject to

AEDPA’s requirements. Lindh v. Murphy, 521 U.S. 320, 336 (1997).

Under AEDPA, a petitioner must apply for and obtain a COA before

appealing a district court’s denial of habeas relief. 28 U.S.C.

§ 2253(c).

     To obtain a COA, an applicant must make “a substantial showing

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

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), and to meet this

standard, the applicant must demonstrate that “‘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,”’” Miller-El, 537 U.S. at 336 (quoting Slack v. McDaniel,

529 U.S. 473, 484 (2000)). We recognize that the inquiry in which

this Court must engage “is a threshold inquiry only, and does not

require full consideration of the factual and legal bases of [the

petitioner’s] claim[s].” Neville v. Dretke, 423 F.3d 474, 482 (5th

Cir. 2005) (citing Miller-El, 537 U.S. at 336). We will issue a COA

if Moore can demonstrate that “the [d]istrict [c]ourt’s application


                                     12
of AEDPA to [his] constitutional claims . . . was debatable among

jurists of reason.” Miller-El, 537 U.S. at 336. A claim can be

debatable “even though every jurist of reason might agree, after

the   COA   has     been   granted   and     the     case   has   received      full

consideration, that petitioner will not prevail.” Id. at 338.

Because Moore was sentenced to death, “we must resolve any doubts

as to whether a COA should issue in his favor.”                        Martinez v.

Dretke, 404 F.3d 878, 884 (5th Cir. 2005).

      In evaluating the district court’s application of AEDPA to

Moore’s constitutional claims, we keep in mind the standard of

review imposed by AEDPA on the district court. First,

      A district court may grant habeas relief only if it
      determines that 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” or “in a
      decision that was based on an unreasonable determination
      of the facts in light of the evidence presented in the
      State court proceeding.”

Leal v. Dretke, 428 F.3d 543, 548 (5th Cir. 2005) (quoting 28

U.S.C. § 2254(d)(1), (2)). Second, “a determination of a factual

issue made by [the] State court shall be presumed to be correct”

unless   the      petitioner   rebuts      the     presumption    by    clear   and

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

      Moore argues that he is entitled to a COA, and ultimately

habeas relief, because (1) his conviction and sentence offend the

Assistance of Counsel Clause of the Sixth Amendment in that his

trial attorneys failed to present sufficient available evidence of

                                        13
his incompetence to the trial court to support their request for a

competency hearing, (2) the courts of Texas were unreasonable to

hold that the state writ hearing testimony of Moore’s defense

experts, which Moore argues would have raised a bona fide doubt as

to his competency to stand trial, was not reasonably available to

Moore’s attorneys   during   trial,   and   (3)   the   courts   of   Texas

unreasonably applied the wrong rule of decision in holding that

Moore was not prejudiced by the failure of his defense attorneys to

produce during trial the testimony of defense experts on the

question of his competency to stand trial.5 Respondent Dretke

contends that Moore’s second and third arguments are attacks on the

TCCA’s analysis of the ineffective assistance of counsel claim and

that as such, they are not reviewable. See Neal v. Puckett, 286

F.3d 230, 246 (5th Cir. 2002) (“[A] federal habeas court is

authorized by Section 2254(d) to review only a state court’s

‘decision,’   and   not   the   written     opinion     explaining    that

decision.”). While we recognize that we cannot second guess a state

court’s decision just because its reasoning is wrong, we do not

face such a problem here because we agree with the state court’s

resolution of the prejudice issue and find that reasonable jurists



  5
   The TCCA held that Moore failed to establish prejudice because
he failed to establish at the writ hearing that he was incompetent
to stand trial, citing Edwards v. State, 993 S.W.2d 171 (Tex. App.-
-El Paso 1999, pet. ref’d), Brown v. State, 960 S.W.2d 772 (Tex.
App.--Dallas 1997, pet. ref’d), and Taylor v. State, 948 S.W.2d 827
(Tex. App.--San Antonio 1997, pet. ref’d).

                                 14
could not debate the district court’s conclusion as to the same.

     A criminal defendant has a right to counsel under the Sixth

Amendment, and the right to counsel entails the right to effective

assistance of counsel. Strickland, 466 U.S. at 684-86. To prove

ineffective assistance of counsel under Strickland, a defendant

must show (1) “that counsel’s performance was deficient,” and (2)

“that the deficient performance prejudiced the defense.” Id. at

687. A finding of deficient performance requires a showing that

“‘counsel made errors so serious that counsel was not functioning

as the “counsel” guaranteed the defendant by the Sixth Amendment,’”

Leal, 428 F.3d at 548 (quoting Strickland, 466 U.S. at 687), that

is, petitioner must show that counsel’s performance fell below an

objective standard of reasonableness, as measured by prevailing

professional   norms,   Strickland,   466   U.S.   at   688.   Deficient

performance is prejudicial “only if, but for counsel’s errors,

there is a reasonable probability that the final result would have

been different and confidence in the reliability of the verdict has

been undermined.” Leal, 428 F.3d at 548 (citing Little v. Johnson,

162 F.3d 855, 860-61 (5th Cir. 1998)). Failure to prove either

deficient performance or prejudice will defeat an ineffective

assistance of counsel claim, id., and if a case can be decided on

the prejudice prong, it should be, Bouchillon v. Collins, 907 F.2d

589, 595 (5th Cir. 1990) (“The central purpose in examining any

claim of ineffective assistance of counsel is to ensure that the


                                 15
defendant      was   accorded    due   process,     ‘not   to    grade   counsel’s

performance.’” (quoting Strickland, 466 U.S. at 697)).

       Because we find that the prejudice prong decides this case, we

do   not   address     the   reasonableness       of   counsel’s    performance.

Reasonable jurists could not debate the district court’s conclusion

that counsel’s performance in this case was not prejudicial. The

TCCA found that Moore failed to establish that he was incompetent

to stand trial--considering all the evidence brought forward in the

state writ hearing, including the defense experts’ testimony--and

this factual finding is entitled to a presumption of correctness.

See Thompson v. Keohane, 516 U.S. 99, 111 (1995) (noting competency

to stand trial is a “factual issue,” the resolution of which is

entitled “presumptive weight” (citing Maggio v. Fulford, 462 U.S.

111, 117 (1983))); Demosthenes v. Baal, 495 U.S. 731, 735 (1990)

(same); Carter, 131 F.3d at 464 (holding that the state habeas

court’s decision regarding competency was entitled to a presumption

of correctness). Moore has failed to rebut this presumption with

clear and convincing evidence. Therefore, “it necessarily follows

that    [Moore’s]        trial    counsel     were       not     constitutionally

ineffective.” Carter, 131 F.3d at 464.

       Moore    argues    that   Bouchillon    v.      Collins   necessitates    a

different result because there the Court held that a petitioner

“need only demonstrate a ‘reasonable probability’ that he was

incompetent”; he need not prove incompetence by a preponderance of


                                        16
the evidence. 907 F.2d at 595. However, Bouchillon and the instant

case are distinguishable because here we are bound by the state

court’s factual determination that Moore is competent, whereas

there was no such binding factual determination in Bouchillon. Id.

at 593-94. Furthermore, Bouchillon stands for the proposition that

a defendant can show prejudice by demonstrating a reasonable

probability that the state court would have found the defendant to

be incompetent, had the attorney not performed ineffectively. See

Strickland, 466 U.S. at 694 (“The defendant must show that there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A

reasonable probability is a probability to undermine confidence in

the outcome.”). Here, because we must presume the correctness of

the state court determination that Moore was, in fact, competent to

stand trial, Moore has not met this standard.

                          IV. Conclusion

     Petitioner Moore has not demonstrated that reasonable jurists

could debate the district court’s conclusion that Moore did not

receive ineffective assistance of counsel. Accordingly, Moore’s

Application for a Certificate of Appealability is DENIED.




                                17
