                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          April 23, 2007
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                       ))))))))))))))))))))))))))                Clerk

                             No. 06-70034

                       ))))))))))))))))))))))))))

GERALD JAMES HOLLAND

                Petitioner–Appellant

     v.

JAMES V. ANDERSON, Superintendent,
Mississippi State Penitentiary

                Respondent–Appellee


           Appeal from the United States District Court
             for the Southern District of Mississippi
                         No. 1:98-CV-0562



Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Before the court is a motion for issuance of a certificate

of appealability (“COA”) filed by Petitioner Gerald James Holland

(“Holland”), who was convicted in Mississippi of capital murder

during the course of a rape and subsequently sentenced to death.

In his motion, Holland raises five issues that he asserts should

be heard by this court.    For the following reasons, we GRANT a



     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
COA with respect to Holland’s claim that he was not permitted to

introduce rebuttal evidence at his re-sentencing.       We deny a COA

on the remainder of the issues.

              I.     FACTUAL AND PROCEDURAL BACKGROUND

     On November 17, 1986, Holland was indicted by a grand jury

in Harrison County, Mississippi, for murdering fifteen-year-old

Krystal D. King while “engaged in the commission of the crime and

felony of Rape . . . .”     Venue was transferred to Adams County,

Mississippi, where Holland was tried before a jury in November

and December 1987.    Following the twelve-day trial, the jury

convicted Holland of capital murder, making Holland eligible for

the death penalty.     See MISS. CODE ANN. § 97-3-19(2)(e) (2006)

(defining capital murder to include murder while engaged in the

commission of the crime of rape); § 97-3-21 (authorizing death

penalty for those convicted of capital murder).       Immediately

after the jury returned its guilty verdict, the judge sent the

jury out of the room so he could discuss with the attorneys how

the penalty phase would proceed.       Approximately twenty-two

minutes later, the jury sent out a note stating, “We, the jury,

sentence Gerald James Holland to death.”       The judge then

admonished the jury to refrain from deliberations, and the

penalty phase proceeded with the same jury.       At the conclusion of

the sentencing phase, the jury sentenced Holland to death.

     On direct appeal, the Mississippi Supreme Court affirmed



                                   2
Holland’s conviction, but reversed the death sentence on the

ground that the jury’s premature deliberations regarding the

death penalty had prejudiced Holland.   Holland v. State, 587 So.

2d 848, 872-74 (Miss. 1991) (Holland I).   Holland was then re-

sentenced by a new jury (“the re-sentencing jury”).   On April 3,

1993, that jury also sentenced Holland to death, and the

Mississippi Supreme Court upheld the sentence on direct appeal.

Holland v. State, 705 So. 2d 307, 357 (Miss. 1997), cert. denied,

525 U.S. 829 (1998) (Holland II).

     Prior to seeking post-conviction relief in Mississippi state

court, Holland filed a pro se application for stay of execution

and a motion for appointment of counsel with the United States

District Court for the Southern District of Mississippi in

December 1998.   The district court granted both motions, but

stayed further action in Holland’s case, pending the exhaustion

of his state court remedies.   Holland then filed a petition for

post-conviction relief with the Mississippi Supreme Court, which

the court denied.   Holland v. State, 878 So. 2d 1, 10 (Miss.

2004), cert. denied, 544 U.S. 906 (2005) (Holland III).

     After Holland III was announced, the district court lifted

the stay and Holland filed an amended petition for writ of habeas

corpus1 in which he raised twelve claims for habeas relief.     In a

thorough opinion, the district court denied the amended petition

     1
        There was no “original” petition for habeas corpus relief
in this case other than Holland’s initial pro se filings.

                                 3
and subsequently denied Holland’s request for a certificate of

appealability.   Holland then filed the instant motion for

certificate of appealability with this court, raising five

issues.   We now address his claims.

                          II. LEGAL STANDARD

     Pursuant to 28 U.S.C. § 2253, a petitioner such as Holland

has no absolute entitlement to appeal the district court’s denial

of his petition for writ of habeas corpus.     Miller-El v.

Cockrell, 537 U.S. 322, 335 (2003).    Rather, he must first seek

and obtain a certificate of appealability (“COA”) from a circuit

justice or judge on the issues he desires to appeal.    28 U.S.C.

§ 2253(c)(1).    This is a jurisdictional requirement without which

this court lacks the authority to hear the merits of Holland’s

appeal.   See Miller-El, 537 U.S. at 336.

     A COA may issue only when a petitioner has made a

“substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).    This means that the petitioner must

“sho[w] 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)); Foster v. Quarterman, 466 F.3d 359, 364 (5th Cir. 2006),

petition for cert. filed, __ U.S.L.W. __ (U.S. Jan. 24, 2007)



                                  4
(No. 06-9253).

     A COA determination requires an overview of the claims in

the habeas petition and a general assessment of their merits.

Miller-El, 537 U.S. at 336.   However, this threshold inquiry does

not require full consideration of the factual or legal bases of

the claim, nor does it require a showing that the appeal will

succeed.    Id. at 336-37; see also Foster, 466 F.3d at 364 (noting

that the court is limited to a “threshold inquiry” into the

underlying merit of the claims).        Rather, the petitioner must

only demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or

wrong.    Slack, 529 U.S. at 484.

     In making this threshold inquiry, we are mindful of the

deference owed to state court decisions in habeas cases which,

like this one, are subject to the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110

Stat. 1214 (1996).   Post-AEPDA, federal courts assessing a

petition for writ of habeas corpus from a state prisoner must

defer to the state court’s resolution of those claims, with few

exceptions.    See 28 U.S.C. § 2254(d); see also Foster, 466 F.3d

at 365.    Deference is mandated both for questions of law and for

mixed questions of law and fact, unless the state court’s

decision was contrary to, or involved an unreasonable application

of, clearly established federal law, as determined by the Supreme

Court of the United States.    Hill v. Johnson, 210 F.3d 481, 485

                                    5
(5th Cir. 2000).    A state court’s decision is “contrary to”

clearly established federal law if it reaches a legal conclusion

in direct conflict with a prior decision of the Supreme Court or

if it reaches a different conclusion than the Supreme Court on

materially indistinguishable facts.      Williams v. Taylor, 529 U.S.

362, 412-13 (2000).    A state court’s decision involves an

“unreasonable application” of clearly established federal law if

the state court identifies the correct legal principle but

unreasonably applies that principle to the facts of the

petitioner’s case.     Id. at 413.

       Deference is also required unless the state court’s decision

was based on an unreasonable determination of the facts in light

of the evidence presented in the state court proceeding.      28

U.S.C. § 2254(d)(2).    Pursuant to AEDPA, the state court’s

factual findings are presumed correct unless rebutted by clear

and convincing evidence.     Id. § 2254(e)(1); Foster, 466 F.3d at

365.

       While Holland need not prove that his appeal would succeed

under the AEDPA standard in order to receive a COA, see Miller-

El, 537 U.S. at 337, we recognize that the district court’s

consideration of his claims (as well as our analysis in the event

we grant a COA) is limited by the deference mandated under AEDPA.

With that standard in mind, we turn to Holland’s motion for a

COA.



                                     6
                         III.   DISCUSSION

A.   Denial of Fair and Impartial Jury at Guilt/Innocence Phase

     Holland first asserts that he was denied the right to a fair

and impartial jury at the guilt/innocence phase of his trial

because (1) the coroner stated in the presence of some venire

members that Holland should be “strung up;” and (2) venire

members were “joking” that they should convict Holland so they

could go home.   The State argues, and the district court held,

that Holland did not exhaust this claim before the state court as

required under 28 U.S.C. § 2254(b).   Because his habeas claim was

denied on exhaustion grounds, we may not issue a COA unless

Holland demonstrates that “‘jurists of reason would find it

debatable whether the petition states a valid claim of a denial

of a constitutional right and that jurists of reason would find

it debatable whether the district court was correct in its

procedural ruling.’”   Ruiz v. Quarterman, 460 F.3d 638, 642 (5th

Cir. 2006), cert. denied, __ S. Ct. __, 2007 WL 789132 (Mar. 19,

2007) (quoting Slack, 529 U.S. at 484).

     Pursuant to § 2254(b)(1), an application for writ of habeas

corpus shall not be granted unless the petitioner “has exhausted

the remedies available in the courts of the State . . . .”2    A


     2
       ADEPA excuses the exhaustion requirement if “there is an
absence of available State corrective process” or “circumstances
exist that render such process ineffective to protect the rights”
of the petitioner. 28 U.S.C. § 2254(b)(1). No such allegations
have been made in this case.

                                 7
petitioner has not exhausted his state court remedies if “he has

the right under the law of the State to raise, by any available

procedure, the question presented.”    Id. § 2254(c).   Federal

courts retain the power, however, to deny a petition on its

merits even in the absence of state court exhaustion.     Id.

§ 2254(b)(2).

     In order to exhaust his claim in state court, Holland must

have “fairly presented the substance of his claim to the state

courts.”    Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001)

(citations and quotation marks omitted).   In other words, Holland

must have presented the state court with the same facts and legal

theories upon which he bases his current assertions.     See Ruiz,

460 F.3d at 643.

     Turning to Holland’s claim that he was not given a fair and

impartial jury during the guilt/innocence phase of his trial (as

opposed to the original sentencing or re-sentencing phases), the

only state court pleading in which that claim was arguably raised

is Holland’s direct appeal of his conviction and initial death

sentence.   His first argument in that direct appeal was that the

trial court erred when it refused to grant a mistrial after

learning that the jurors had deliberated on punishment prior to

the sentencing phase.   As the evidentiary basis for his claim,

Holland described how the jury sent out the note sentencing him

to death before the sentencing phase even took place.    Although

he did not specify that he was referring only to the sentencing

                                  8
phase of his trial, he did not reference or include any facts

that would suggest his argument pertained to the guilt/innocence

phase, as well.

     That Holland’s first direct appeal was only directed at the

impartiality of the jury during the sentencing phase is born out

in later briefing.   In response to the direct appeal, the State

argued as if Holland was only challenging the impartiality of the

jury during the sentencing phase.     In reply, Holland did not

argue that the State misunderstood the scope of his claim but,

again, only referenced the jury’s deliberations on his sentence.

     In sum, Holland has not directed this court to any pleading

or argument that he made before the state court that the jury was

not fair and impartial during the guilt/innocence phase of his

trial.   Further, we have found no reference to the specific

evidentiary basis for his argument here--the comments of the

coroner and the “joking” of the venire members--in any of his

state court briefing.   As a result, we can only conclude that

reasonable jurists would agree that Holland did not exhaust this

claim before the state court.    See Ruiz, 460 F.3d at 643 (stating

that exhaustion requires that “all the grounds of the claim be

first and ‘fairly represented’ to the state courts”).

     We further conclude, as did the district court, that

reasonable jurists would agree that Holland’s claim is also

procedurally barred.    When a petitioner has failed to exhaust a

claim in state court, and that failure would now also result in

                                  9
the state procedurally rejecting that claim, the petitioner has

procedurally defaulted on the claim and it is barred.3     Id.

(citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)).

Exceptions to the procedural bar exist when the petitioner can

show “cause and actual prejudice” or that the bar will result in

a “fundamental miscarriage of justice.”     Id.   “Cause” requires a

showing that an external force prevented the petitioner from

complying with the state’s procedural rules, while a “miscarriage

of justice” requires a colorable showing of factual innocence.

Bagwell v. Dretke, 372 F.3d 748, 756-57 (5th Cir. 2004).

     Here, under Mississippi law in effect at the time the

Mississippi Supreme Court ruled on Holland’s direct appeal of his

re-sentencing, an application for post-conviction collateral

relief must have been made within three years after conviction.

MISS. CODE ANN. § 99-39-5(2).4   Conviction is defined as the date

that the mandamus pertaining to a direct appeal is issued.       See

Puckett v. State, 834 So. 2d 676, 677-78 (Miss. 2002).     The

mandamus for Holland’s second and last direct appeal was issued

in February 1998, well over three years ago, meaning Mississippi


     3
        Absent a procedural bar, a petitioner could conceivably
return to state court and attempt to exhaust his remedies. See,
e.g., Fuller v. Johnson, 158 F.3d 903, 905-06 (5th Cir. 1998)
(holding that court was not required to dismiss unexhausted claim
without prejudice because it was procedurally barred).
     4
        Section 99-39-5(2) has since been amended to require that
motions for post-conviction relief in capital cases be filed
within one year of conviction.

                                  10
courts would find his claim barred by limitations.    Holland has

made no attempt to demonstrate that his claim is not procedurally

barred or that he falls within one of the exceptions.    As a

result, reasonable jurists would find it beyond debate that

Holland’s jury impartiality claim is now barred by limitations.

     Holland also argues that his claim that the guilt/innocence

jury was not fair and impartial is “a structural defect in the

trial mechanism” that permits review of his claim regardless of

exhaustion.   It is unclear whether Holland intends this argument

to fit somewhere in the AEDPA analysis or whether he believes it

is independent from AEDPA and requires reversal of conviction

regardless of his compliance with AEDPA.    Either way, his

argument lacks merit.

     The Supreme Court has divided constitutional errors into two

categories--“trial errors” and “structural defects.”     United

States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2563-64 (2006).       Trial

errors occur during the presentation of the case to the jury and

are subject to the harmless error analysis.    Id.   Structural

defects, however, “defy analysis by harmless-error standards

because they affect the framework within which the trial

proceeds . . . .”   Id. at 2364 (internal citations, quotation

marks, and modifications omitted); see also Burgess v. Dretke,

350 F.3d 461, 471 (5th Cir. 2003) (stating structural defects

infect the entire trial process).    Structural errors include

denial of counsel, denial of the right to self-representation,

                                11
denial of the right to public trial, and denial of an impartial

decisionmaker.    Gonzalez-Lopez, 126 S. Ct. at 2564 (denial of

counsel, self-representation, and public trial); Virgil v.

Dretke, 446 F.3d 598, 607 (5th Cir. 2006) (denial of impartial

decisionmaker).

     Assuming arguendo that Holland’s claim of the denial of a

fair and impartial jury is a structural defect that would require

reversal, we must consider whether Holland has demonstrated that

his jury at the guilt/innocence phase was not fair and impartial.

As noted above, Holland focuses on two events during voir dire:

(1) the local coroner telling several venire members that Holland

should be “strung up;” and (2) several venire members joking that

they should convict Holland so they could go home.   We consider

each in turn.

     Review of the record shows that, after it was discovered

that the coroner had made his comments in the presence of several

venire members, the trial court asked the venire members if any

of them had heard the coroner’s comments.   Only venire member

Marion responded that he had heard the coroner’s comments.5

Marion also stated that he had read a recently published article

in the newspaper regarding the case, as had many venire members.

The trial court subsequently dismissed all the venire members who

had read the newspaper article.    Therefore, Marion did not serve

     5
        At least two other venire members saw the coroner but did
not hear what the coroner said.

                                  12
on the jury, and there is no evidence that the coroner’s comments

were heard by or relayed to any member of the jury.

Consequently, this incident is not sufficient to show that the

jury was not fair and impartial.     See United States v. Davis, 393

F.3d 540, 549 (5th Cir. 2004) (noting that juries are presumed to

be impartial, absent evidence to the contrary).

     Turning to Holland’s other argument, it was revealed during

voir dire that venire member Mitchell had joked that perhaps they

should vote to convict the defendant so they could all go home.

At the time Mitchell’s comments came up in voir dire, Mitchell

had already been stricken for cause, having read a newspaper

article on the crime and formed an opinion.    Holland points to no

evidence in the transcript that any of the venire members who

heard the joke ended up on the jury and somehow were influenced

by Mitchell’s comments.   Again, this is an insufficient showing

to demonstrate a structural defect in the trial mechanism that

would warrant a new trial on the ground that the jury was not

fair and impartial.   As a result, we decline to issue a COA on

Holland’s first claim.

B.   Prosecutor’s Use of Peremptory Challenges During Selection
     of Re-Sentencing Jury

     Holland next alleges that the State’s use of its peremptory

challenges to exclude jurors with misgivings about the death

penalty violated his Fifth, Sixth, Eighth, and Fourteenth

Amendment rights.   Holland specifically identifies venire members

                                13
Bradley and Tammen as having been excused by the State through

its peremptory challenges.    During voir dire, Bradley stated she

had strong reservations about the death penalty and was unsure

whether she could vote for it.   Tammen stated she was “not crazy

about dealing with the death penalty.”   Holland’s counsel did not

object to the State’s use of peremptory challenges on these

venire members at the time.

     The State makes three arguments in response: (1) Holland

failed to exhaust this contention in state court; (2) Holland

waived this claim by failing to object at trial; and (3) the

Mississippi Supreme Court’s decision was not contrary to, or an

unreasonable application of, clearly established federal law.    We

choose to address this claim under the State’s third argument.

See 28 U.S.C. § 2254(b)(2) (stating the court may deny a habeas

petition even if it has not been exhausted).

     Because Holland did not object to the State’s use of

peremptory challenges on Bradley and Tammen at the time, we can

only speculate as to whether the State struck them for their

views on the death penalty or for unrelated reasons.   Regardless,

this court has “‘consistently held that in capital cases

peremptory challenges may be used to exclude those [prospective

jurors] who express hesitancy about imposing the death penalty

but whose exclusion for cause is forbidden by Witherspoon.’”6

     6
        Witherspoon is the Supreme Court case Witherspoon v.
Illinois, in which the Court held that it is permissible to

                                 14
Andrews v. Collins, 21 F.3d 612, 628 (5th Cir. 1994); see also

Sonnier v. Maggio, 720 F.2d 401, 406 (5th Cir. 1983) (stating

that the exercise of peremptory challenges does not implicate

Witherspoon).   As a result, even if the State struck Bradley and

Tammen for their hesitancy regarding the death penalty, such a

decision would be permissible under our precedent.

     Holland cites no case law to the contrary.    The only binding

Supreme Court authority he cites deals either with challenges for

cause under Witherspoon, see Adams v. Texas, 448 U.S. 38, 47-48

(1980), or the use of peremptory challenges on the basis of race,

see Powers v. Ohio, 499 U.S. 400, 411 (1991), neither of which

contradicts our prior precedent noted above.   As a result,

Holland has not met his burden of demonstrating a substantial

showing of the denial of a constitutional right.     See 28 U.S.C.

§ 2253(c)(2).   Therefore, we deny a COA on this issue.

C.   Denial of Fair and Impartial Jury at Re-Sentencing

     Holland next claims that he was denied the right to a fair

and impartial jury at his re-sentencing in violation of the

Fifth, Sixth, Eighth, and Fourteenth Amendments.   Specifically,

Holland claims that the jury was affected by “prejudicial


exclude jurors for cause when they make unmistakably clear “(1)
that they would automatically vote against the imposition of
capital punishment without regard to any evidence that might be
developed at the trial of the case before them, or (2) that their
attitude toward the death penalty would prevent them from making
an impartial decision as to the defendant’s guilt.” 391 U.S. 510,
522 n.21 (1968).


                                15
extraneous facts and information not introduced into evidence”

when several venire members admitted to prior knowledge of the

case and one venire member stated he was in agreement with

Holland’s first sentence.    The State contends that Holland’s

arguments are either unexhausted or lack merit.

     We begin with the initial presumption that a jury is

impartial.   United States v. Ruggiero, 56 F.3d 647, 652 (5th Cir.

1995).   This presumption, however, may be rebutted and prejudice

may be shown by evidence that extrinsic factual matter tainted

the jury’s deliberations.    Id.   A court must investigate any

asserted impropriety when “a colorable showing of extrinsic

influence appears . . . .”    United States v. Martinez, 151 F.3d

384, 394 (5th Cir. 1998); Ruggiero, 56 F.3d at 652.

     Here, Holland points to the statements of several venire

members made in front of the entire panel to support his claim

that extrinsic evidence influenced the jury.       Venire members

Barney and Hall both stated they had a fixed opinion about the

case and could not be impartial.        Venire members Carrier, Tammen,

and Scarbrough all stated that they remembered the case, but none

of them was selected for the jury.       Juror Larson also stated she

remembered the case and would start the case thinking the death

penalty was appropriate; however, upon further questioning, she

stated that she could set her opinion aside and follow the law.

She was not challenged by Holland and served on the re-sentencing

jury.

                                   16
     Holland further places great emphasis on the statement of

venire member Joseph during voir dire.    Joseph, a deputy sheriff,

stated he had some professional knowledge of the case and could

not be impartial.   Joseph then stated, “I was in complete

agreement with the first sentence that he got and feel-” at which

point counsel objected.    Joseph was excused for cause.

     In sum, the “extrinsic evidence” introduced to the jury was

that (1) some people had heard of the case before; (2) some

people had fixed opinions about the case; and (3) at least one

person agreed with the initial sentence, although there was no

indication of what that sentence was.7    Reasonable jurists would

not find that this is a “colorable showing” that extrinsic

evidence actually tainted the jury’s deliberations.    See United

States v. Leahy, 82 F.3d 624, 630 n.6 (5th Cir. 1996) (rejecting

claim of outside influence on jury because there was no colorable

showing of influence).    As stated by the Supreme Court, “[t]o

hold that the mere existence of any preconceived notion as to the

guilt or innocence of an accused, without more, is sufficient to

rebut the presumption of a prospective juror’s impartiality would

be to establish an impossible standard.    It is sufficient if the


     7
       In Romano v. Oklahoma, the Supreme Court held that it was
not impermissible to introduce evidence that the defendant had
been sentenced to death in another case. 512 U.S. 1, 13-14
(1994). Although not directly on point with the facts here, it
does lend support to the State’s position that no improper
influence occurred when jurors were made aware that Joseph agreed
with the “first sentence.”

                                 17
juror can lay aside his impression or opinion and render a

verdict based on the evidence presented in court.”    Dobbert v.

Florida, 432 U.S. 282, 302 (1977) (internal quotations marks

omitted).    Without a showing of extrinsic influence, reasonable

jurists would not find debatable Holland’s claim that the re-

sentencing jury was not fair and impartial.   Therefore, we deny a

COA on this issue.

D.   Inability to Rebut Evidence at Re-Sentencing

     Holland next asserts that his rights under the Fifth, Sixth,

Eighth, and Fourteenth Amendments were violated when he was not

allowed to rebut the State’s evidence at his re-sentencing that

he murdered King while engaged in the commission of the crime of

rape.    Holland claims that, at the re-sentencing and in order to

show an aggravating circumstance under Mississippi law, the State

put on evidence that he raped and killed King, but that he was

not allowed to put on evidence to the contrary.8    The State

argues that Holland should not be allowed to relitigate the issue

of his guilt at his re-sentencing, as it is res judicata, and

that recent Supreme Court precedent forecloses Holland’s claim.

See Oregon v. Guzek, 546 U.S. 517, 126 S. Ct. 1226 (2006).

     Analysis of this issue requires a brief overview of

Mississippi’s capital sentencing system.   Holland was charged

with and found guilty of capital murder under Mississippi law,

     8
        It appears that Holland primarily wished to challenge the
finding that he raped King prior to killing her.

                                 18
which provides that murder committed while engaged in the

commission of the crime of rape is capital murder.    MISS. CODE ANN.

§ 97-3-19(2)(e).    Individuals found guilty of capital murder are

eligible for the death penalty.    Id. § 97-3-21.   The procedure

for sentencing in a death penalty case is described in section

99-19-101.   In order to sentence an individual to death, the jury

must unanimously find the following:

     (a) That sufficient factors exist      as   enumerated   in
     subsection (7) of this section;

     (b) That sufficient aggravating circumstances exist as
     enumerated in subsection (5) of this section; and

     (c) That there are insufficient mitigating circumstances,
     as enumerated in subsection (6), to outweigh the
     aggravating circumstances.

Id. § 99-19-101(3).

     Subsection (7) requires the jury to find the defendant

actually killed, attempted to kill, intended that a killing take

place, or contemplated that lethal force would be used.       Id.

§ 99-19-101(7).    Subsection (5) lists eight aggravating

circumstances, three of which were argued in this case: (1) the

capital offense was committed while the defendant was engaged in

the commission of a rape; (2) the capital offense was committed

for the purpose of avoiding or preventing a lawful arrest; and

(3) the capital offense was especially heinous, atrocious, or

cruel.   Id. § 99-19-101(5).   Here, the jury found that all three

aggravating factors had been proven by the State.

     As should be evident from the above discussion, the fact

                                  19
that Holland murdered King while engaged in the act of the

commission of the crime of rape is both an element of the

guilt/innocence finding on the capital murder charge and an

aggravating circumstance militating toward imposition of the

death penalty.   It is this dual function that raises a

constitutional question in this case.

     In Holland II, the Mississippi Supreme Court addressed

Holland’s claim that he should be allowed to put on evidence at

his re-sentencing to rebut the State’s evidence, also used at

Holland’s re-sentencing, that he killed King while committing the

crime of rape.   705 So. 2d at 320-29.   The court held that

Holland was not allowed to put on such evidence because the issue

of his guilt as to the crimes of rape and murder was res judicata

at the re-sentencing phase.   Id. at 323-24.   The court also held

that, although Mississippi permits a capital defendant to argue

residual or whimsical doubt, Holland had no constitutional right

to put on evidence in support of such a doubt.    Id. at 324-26.

Three justices dissented in Holland II on this issue.     They

argued that Holland had a right to rebut any and all evidence

used against him at the re-sentencing hearing.    Id. at 358-60

(Prather, J., dissenting).

     The United States Supreme Court has held that “[t]he Due

Process Clause does not allow the execution of a person ‘on the

basis of information which he had no opportunity to deny or

explain.’”   Simmons v. South Carolina, 512 U.S. 154, 161 (1994)

                                20
(plurality) (quoting Gardner v. Florida, 430 U.S. 349, 362

(1977)).   Holland asserts that the trial court’s prohibition on

his rebuttal evidence violated this rule of law.   In essence,

Holland was not allowed to challenge one of the aggravating

circumstances the State used to argue that the death penalty was

appropriate.   The lack of rebuttal evidence makes it much more

likely that a jury would find that the State met its burden with

respect to that aggravating circumstance.   We believe reasonable

jurists would find the resolution of this argument debatable.

     In its opinion on Holland’s amended petition for writ of

habeas corpus, the district court in this case found the Supreme

Court’s decision in Oregon v. Guzek, 546 U.S. 517, 126 S. Ct.

1226 (2006), dispositive as to Holland’s claim.9   In Guzek, the

Supreme Court held that, in a sentencing proceeding in a death

penalty case, a state may limit the defendant’s introduction of

innocence-related evidence to that evidence that was used in the

guilt/innocence phase of the trial.   126 S. Ct. at 1228.

Prompting the appeal in Guzek was Guzek’s desire to introduce new

alibi evidence at his re-sentencing after he was convicted of

capital murder.   Id. at 1229.   While Oregon law permitted Guzek

to introduce innocence-related evidence from the guilt/innocence

phase, it did not allow for the introduction of new innocence-

     9
        Because Guzek was not issued until after the Mississippi
Supreme Court ruled on Holland’s appeals, that court did not have
the opportunity to examine the effect of Guzek on Holland’s
claim.

                                 21
related evidence at the re-sentencing phase.   OR. REV. STAT.

§ 138.012(2)(b) (2003).

     While part of the rationale in Guzek supports the State’s

position in this case, there are several key distinctions that

cause us to want to consider the issue in more detail.    First,

one of the circumstances listed by the Supreme Court as

persuasive in its decision was that the Oregon statute permitted

Guzek to put on innocence-related evidence that had been used at

the guilt/innocence phase.   Id. at 1233.   The Court stated that

this fact minimized the negative impact of the rule prohibiting

the introduction of new innocence-related evidence.    Id.   That

circumstance, however, is absent in Holland’s case, as the trial

court did not permit any evidence challenging Holland’s guilt,

regardless of whether it was introduced in the guilt/innocence

phase.   Second, there do not appear to have been any overlapping

issues between the guilt/innocence phase and the re-sentencing

phase in Guzek.   Here, as noted above, both the guilt/innocence

jury and the re-sentencing jury were asked to find, and did find,

that Holland killed King while committing the crime of rape.

Consequently, while Guzek is instructive, it is not binding in

this instance.

     “While the nature of a capital case is not of itself

sufficient to warrant the issuance of a COA, in a death penalty

case any doubts as to whether a COA should issue must be resolved

in [the petitioner’s] favor.”   Ramirez v. Dretke, 398 F.3d 691,

                                22
694 (5th Cir. 2005) (internal citations and quotation marks

omitted).    We believe reasonable jurists would find this issue

debatable and that Holland “deserve[s] encouragement to proceed

further.”    See Miller-El, 537 U.S. at 336 (internal quotation

marks omitted).    Therefore, we grant a COA on this issue.

E.     Ineffective Assistance of Counsel at Re-Sentencing

       Finally, Holland argues that his rights under the Fifth,

Sixth, Eighth, and Fourteenth Amendments were violated when he

received ineffective assistance of counsel during his re-

sentencing.    The State argues that some of Holland’s ineffective

assistance claims are meritless and that some were not exhausted.

       In order to demonstrate that his counsel was ineffective,

Holland must show that (1) his counsel’s performance was

deficient; and (2) the deficient performance prejudiced his

defense.    Strickland v. Washington, 466 U.S. 668, 687 (1984); St.

Aubin v. Quarterman, 470 F.3d 1096, 1101 (5th Cir. 2006),

petition for cert. filed, __ U.S.L.W. __ (U.S. Feb. 19, 2007 (No.

06-9680).    Under the first prong, Holland must show that his

counsel made errors so serious that he was no longer functioning

as “counsel” under the Sixth Amendment.    Strickland, 466 U.S. at

687.    To meet this test, counsel’s performance must fall below an

objective standard of reasonableness.     St. Aubin, 470 F.3d at

1101.    Under Strickland’s second prong, Holland must demonstrate

that there is a reasonable probability that, but for his



                                 23
counsel’s unprofessional errors, the result of the proceeding

would have been different.   Id.    Again, while Holland need not

prove that his counsel was actually ineffective under the

Strickland standard in order to receive a COA, he must at least

demonstrate that reasonable jurists would find the issue

debatable.   See Miller-El, 537 U.S. at 336.

     The specific instances identified by Holland as

demonstrating an ineffective assistance of counsel are:

     •    Failing to properly raise the issue that Holland’s
          right to testify and present a closing argument was
          “chilled” when the state court disallowed rebuttal
          testimony;

     •    Failing to create a record of prejudice when
          counsel did not ask the trial judge to question the
          venire members after Joseph’s statement regarding
          his agreement with Holland’s first sentence;

     •    Failing to object to “certain prosecutorial
          misconduct” during the cross-examination of Dr.
          Zimmerman;

     •    Failing to object to prosecutorial           comments
          regarding Holland’s failure to testify;

     •    Failing to object to the prosecutor’s misstatements
          of the law; and

     •    Failing to object to the prosecutor’s expression of
          his personal feelings and opinions.

     In his motion for COA, Holland simply lists these issues.

He does not brief them, cite to portions of the record, or cite

to any precedent indicating that the Mississippi state courts

erred in their determination of his ineffective assistance claim.

Typically, issues that are not briefed are waived.     Parr v.


                                   24
Quarterman, 472 F.3d 245, 253 (5th Cir. 2006), petition for cert.

filed, __ U.S.L.W. __ (U.S. Mar. 7, 2007) (No. 06-1086) (citing

Yohey v. Collins, 985 F.3d 222, 224-25 (5th Cir. 1993)); Summers

v. Dretke, 431 F.3d 861, 881 n.12 (5th Cir. 2005), cert. denied,

127 S. Ct. 353 (2006).    In this instance, however, by not

adequately briefing these issues, Holland has not met his burden

of demonstrating the substantial denial of a constitutional

right, which is required before we may issue a COA.    See 28

U.S.C. § 2253(c)(2).

     Considering Holland’s claims, we note that the first issue--

failing to raise the chilling of Holland’s right to testify–-is

unexhausted, having never been raised before the Mississippi

state courts.   For the reasons discussed in Section III.A, supra,

this claim is not only unexhausted, but also procedurally barred.

     With respect to Holland’s claim that his counsel failed to

object to the prosecutor’s comments on Holland’s failure to

testify, the Mississippi state court determined that the

prosecutor’s comments were not improper.10   Holland II, 705 So.

2d at 344-45.   Holland has made no attempt to argue that this

ruling was incorrect.    As a result, he cannot show that his

counsel’s performance in failing to object to the prosecutor’s


     10
        Although his motion for COA does not specify what the
prosecutor said, review of Holland II shows Holland was concerned
with the prosecutor’s statement that the forensic evidence was
without question and that the “witness to the rape was killed and
that’s Krystal.” Holland II, 705 So. 2d at 344.

                                 25
comments was deficient, as the prosecutor’s comments were not

objectionable.   See Sones v. Hargett, 61 F.3d 410, 415 n.5 (5th

Cir. 1995) (“Counsel cannot be deficient for failing to press a

frivolous point.”).

     The remainder of the issues Holland raises in his

ineffective assistance of counsel claim also do not meet the

standard for issuance of a COA.    Other than a conclusory

statement, Holland makes no argument that counsel’s performance

fell below an objective standard of reasonableness or that, had

counsel’s performance not been deficient, the outcome of the

proceeding would have been different.    There is a strong

presumption in favor of counsel’s competency.    Martinez v.

Dretke, 404 F.3d 878, 885 (5th Cir. 2005).    “Mere conclusory

allegations in support of a claim of ineffective assistance of

counsel are insufficient to raise a constitutional issue.”

United States v. Holmes, 406 F.3d 337, 361 (5th Cir. 2005)

(internal quotation marks omitted).    Holland has clearly not met

his burden of demonstrating the substantial denial of a

constitutional right with respect to his ineffective assistance

of counsel claim.   We, therefore, deny a COA on this issue.

                          IV. CONCLUSION

     For the reasons above, we GRANT a COA on the single issue of

whether Holland’s rights were violated at his re-sentencing when

he was not permitted to rebut the State’s evidence that he killed



                                  26
King while engaged in the commission of the crime of rape.   We

DENY a COA on all of Holland’s other claims.   The Clerk of Court

will set out a briefing schedule for the single issue on which we

granted a COA.




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