                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                 August 10, 2005
                      _____________________
                                                        Charles R. Fulbruge III
                              No. 04-70040                      Clerk
                         _____________________

                           DERRICK FRAZIER,

                      Petitioner - Appellant,

                                versus

                      DOUG DRETKE, Director,
                   Texas Department of Justice,
               Correctional Institutions Division,

                      Respondent - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                    District Cause No. V-02-110
_________________________________________________________________

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PRADO, Circuit Judge.*

     Derrick Frazier, a Texas inmate, was convicted of capital

murder and sentenced to death.    Frazier seeks a certificate of

appealability (COA) to appeal the district court’s denial of his

application for federal habeas relief.    After considering that

request, this court denies a COA.

                Background of Frazier’s Complaints

     The indictment against Frazier charged him with committing


     *
      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that this opinion should not be published and is not precedent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.

                                   1
capital murder under five different theories:   The first

paragraph alleged that Frazier murdered Betsy Nutt and Cody Nutt

during the same criminal transaction; the second paragraph

alleged that Frazier murdered Betsy Nutt in the course of robbing

her; the third paragraph alleged that Frazier murdered Cody Nutt

in the course of robbing Betsy Nutt; the fourth paragraph alleged

that Frazier murdered Betsy Nutt in the course of burglarizing

the home of Ron Lucich; and the fifth paragraph alleged that

Frazier murdered Cody Nutt in the course of burglarizing Lucich’s

home.

     On direct appeal, the Texas Court of Criminal Appeals

summarized the evidence of Frazier’s guilt as follows:

          Michael Brown testified that, on the evening of
     June 25, 1997, he drove [Frazier] and Jermaine Herron
     to the Lucich home, which was located approximately ten
     miles from Refugio in the country. [Frazier] and
     Herron had been inside the place before and knew where
     guns were kept. In the car, [Frazier] and Herron
     discussed the plan for stealing the guns. The plan was
     that they would quickly retrieve the guns and kill
     anyone in the home. However, before they could enter
     the Lucich home, the lights came on. As a result, the
     three men drove away from the scene before commencing a
     burglary. The next morning, Brown drove [Frazier] and
     Herron back to the Lucich home, dropped them off, and
     drove away.

          In his videotaped confession, [Frazier] narrated
     the following set of events occurring that morning.
     After burglarizing the Lucich home, [Frazier] and
     Herron took a pistol and went to the Nutt residence.
     Hiding the pistol, the two men approached Betsy Nutt,
     and Herron conversed with her. After this
     conversation, Betsy offered to take [Frazier] and
     Herron to Refugio. The three of them entered Betsy’s
     pickup truck, but, as she started the engine, Betsy
     realized she had forgotten her mobile phone. She

                                2
     turned off the engine and went back inside her home to
     retrieve the phone. While Betsy was in her home,
     Herron told [Frazier] that “I’m going to do ‘em now,”
     which [Frazier] took to mean that Herron was going to
     kill the home’s occupants. [Frazier] responded, “It’s
     your business.” When Betsy came back to her truck and
     started the engine, Herron told her that he needed to
     use the bathroom. Betsy told him that he could go
     inside and do so, and Herron entered the Nutt
     residence. Soon afterwards, Herron returned from the
     residence and told Betsy that she had a telephone call.
     Betsy exited the truck and entered her home, with
     [Frazier] following her. Once inside the Nutt home,
     Herron pointed the pistol at Betsy and told her not to
     move. Hearing the commotion, Cody Nutt [(Betsy’s son)]
     came into the room occupied by [Frazier], Herron, and
     Betsy. Then Herron shot Cody with the pistol. After
     shooting Cody, Herron handed the gun to [Frazier] and
     told [Frazier] to shoot Betsy. Although he did not
     want to do it, [Frazier] shot Betsy twice. Both shots
     hit Betsy in the head. The first shot was from six to
     seven feet away while the second shot occurred when
     [Frazier] was standing over Betsy with the gun two or
     three feet away from her. Then Herron set the house on
     fire, and Herron and [Frazier] drove away in Betsy’s
     truck.1

          According to Brown’s testimony, Herron later
     called Brown on the telephone. During their
     conversation, Herron told Brown that he (Herron) had
     killed a lady and a little boy. However, at a later
     date, when Brown and Herron were in jail, Herron told
     Brown that [Frazier] was the one who shot both persons.

Upon hearing this evidence, the jury returned a guilty verdict.

After the State presented its punishment evidence, the jury

answered the three special punishment issues in the affirmative.

Accordingly, the trial court imposed the death penalty.


     1
      In his confession, Frazier explained that after he and
Herron shot Betsy and Cody, they drove back to the Lucich
residence in Betsy’s truck, gathered up the property they had
collected earlier, set fire to the Lucich residence, and then
drove back to Refugio in Betsy’s truck.

                                3
     The Texas Court of Criminal Appeals affirmed Frazier’s

conviction.    That court later denied Frazier’s state habeas

application.    Subsequently, the district court denied Frazier’s

federal habeas application and his request for a COA.    Frazier

has asked this court for a COA on two issues.

                    Standard for Obtaining a COA

     To obtain a COA, Frazier must make “a substantial showing of

the denial of a constitutional right.”2    To make this showing,

Frazier 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.”3    Where the district court denied relief on the merits,

rather than on procedural grounds, Frazier “must demonstrate that

reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.”4    Where the

district court denied relief on a procedural ground, Frazier must

show reasonable jurists would find it debatable whether the

petition states a valid claim of the denial of a constitutional

right and that reasonable jurists would find it debatable whether


     2
      28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S.
322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 483 (2000).
     3
        Miller-El, 537 U.S. at 336 (quoting Slack, 529 U.S. at
484).
     4
        Slack, 529 U.S. at 484.

                                  4
the court was correct in its procedural ruling.5

     In determining whether to grant a COA, this court’s

examination is limited to a threshold inquiry into the underlying

merit of Frazier’s claim.6    “This threshold inquiry does not

require full consideration of the factual or legal bases adduced

in support of the claims.”7    Instead, this court’s determination

is based on “an overview of the claims in the habeas petition and

a general assessment of their merits.”8    “Any doubt regarding

whether to grant a COA is resolved in favor of the petitioner,

and the severity of the penalty may be considered in making this

determination.”9

            Frazier’s Complaint About the Jury Charge

     Frazier contends that he was denied due process because the

state trial judge combined the five theories alleged in the

indictment into a single submission for the jury.    The trial

judge submitted the theories to the jury in a disjunctive manner.

The jury returned a general verdict of “Guilty of capital murder

as charged in the indictment.”    Frazier maintains that the jury

charge permitted the jury to find him guilty without unanimously


     5
      Id.
     6
      Miller-El, 537 U.S. at 336.
     7
      Id. at 337.
     8
      Id.
     9
      Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir. 2003).

                                  5
believing him guilty on a single theory.

     Frazier first complained about the jury charge in his state

habeas petition.   The state habeas judge determined that

Frazier’s trial attorney failed to object to the jury charge and

concluded that Frazier had waived any error.       The Texas Court of

Criminal Appeals then denied Frazier’s application based on the

state habeas judge’s findings of fact and conclusions of law.

Four of the justices of the court, however, dissented from the

denial of Frazier’s application.       The dissenting justices

observed that the court had in the past recognized that charge

error of constitutional dimension was cognizable in a habeas

proceeding.10

     Frazier raised the claim again in his application for

federal habeas relief.   The district court determined that the

operation of state law barred federal consideration of the claim.

The court further determined that Frazier had failed to

demonstrate cause for his procedural default or that failing to

consider the claim would result in a fundamental miscarriage of

justice.   Frazier seeks a COA to challenge the district court’s

resolution of his claim.   Frazier argues that reasonable jurists

would disagree with the district court’s conclusion that the

state court adjudication of his claim was not contrary to or an

unreasonable application of federal law.       He maintains that the

     10
      Ex Parte Derrick Frazier, 67 S.W.3d 189, 190 (Tex. Crim.
App. 2001) (Holland, J., dissenting).

                                   6
dissenting opinion in his state habeas case demonstrates that

reasonable jurists would disagree about the resolution of his

claim.

     The scope of federal habeas review is limited in part by the

doctrine of procedural default.11         “Procedural default exists

where . . . a state court clearly and expressly bases its

dismissal of a claim on a state procedural rule, and that

procedural rule provides an independent and adequate ground for

the dismissal. . . .”12     To be adequate, a state procedural rule

must be strictly or regularly followed by the state court; that

is, it must be “strictly or regularly applied evenhandedly to the

vast majority of similar claims.”13         Where a petitioner contends

a state procedural rule is not strictly or regularly followed, he

must show “that the state has failed to apply the procedural bar

rule to claims identical or similar to those raised by the

petitioner himself.”14     If he does not make this showing, a

procedural default exists and “the petitioner is deemed to have

forfeited his federal habeas claim.”15

     The “Texas contemporaneous objection rule, upon which the


     11
          Bledsue v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999).
     12
          Bledsue, 188 F.3d at 254.
     13
          Amos v. Scott, 61 F.3d 333, 339 (5th Cir. 1995).
     14
          Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997).
     15
          Bledsue, 188 F.3d at 254.

                                      7
state court relied in this case, is an adequate and independent

state ground that procedurally bars federal habeas review.”16

Under that rule, “a petitioner is deemed to have waived any error

by failing to raise an objection.”17     Here, there is no question

that Frazier’s trial attorney failed to object to the jury

charge.     Although Frazier does not specifically address the issue

of procedural default, he at least suggests that the dissent from

the denial of his state habeas application indicates that the

Texas contemporaneous objection rule is not strictly or regularly

applied.     This court has determined otherwise, observing that the

Texas Court of Criminal Appeals “strictly or regularly enforces

the contemporaneous objection rule.”18     Although the dissenting

justices insisted that the rule is not absolute, Texas

jurisprudence makes it clear that the failure to object to a

purported charge error precludes review in a habeas proceeding

unless the petitioner demonstrates that the charge error “in

light of the trial as a whole, so infected the procedure that the

applicant was denied a fair and impartial trial.”19     Yet the

     16
          Cotton v. Cockrell, 343 F.3d 746, 754 (5th Cir. 2003).
     17
          Haley v. Cockrell, 306 F.3d 257, 262 n.8 (5th Cir. 2002).
     18
      Amos, 61 F.3d at 342; see Rogers v. Scott, 70 F.3d 340
(5th Cir. 1995) (determining that Texas courts have not applied
the contemporaneous objection rule erratically or
inconsistently).
     19
      Ex Parte Maldonado, 688 S.W.2d (Tex. Crim. App. 1985); see
Ex parte Coleman, 599 S.W.2d 305, 306 (Tex. Crim. App. 1978)
(requiring habeas applicant to demonstrate that “‘the ailing

                                   8
dissenting justices identified no cases where a petitioner met

that burden and only one case where the court reviewed

unobjected-to charge error on habeas review.20   This court

identified only two habeas proceedings where an intermediate

court of appeals   reviewed unobjected-to charge error.21

Although it appears that two Texas courts have reviewed

unobjected-to charge error in a habeas proceeding, “an occasional

act of grace by a state court in excusing or disregarding a state




instruction by itself so infected the entire trial that the
resulting conviction violates due process’”) (quoting Cupp v.
Naughten, 414 U.S. 141, 147 (1973)).
     20
      The dissenting justices cited three habeas cases for their
proposition that the court of criminal appeals reviews
unobjected-to charge error in habeas cases, yet the court
reviewed unobjected-to charge error only one of those cases. See
Ex parte McKay, 819 S.W.2d 478, 480 (Tex. Crim. App. 1990)
(considering whether the trial court erred in restricting the
scope of voir dire examination); Ex parte Maldonado, 688 S.W.2d
at 116 (explaining that a habeas applicant must demonstrate that
an unobjected-to charge error infected his trial so as to deny
him a fair and impartial trial, but determining that the
applicant failed to allege sufficient facts that would entitle
him to review and dismissing the application); Ex parte Coleman,
599 S.W.2d at 307 (stating that jury charge error rarely rise to
constitutional error and concluding, without explaining why, that
the habeas applicant failed to show that his due process right
was violated by unobjected-to jury charge error).
     21
      See Jones v. State, No. 14-03-00499-CR, 2004 WL 438676, at
*2 (Tex. App.——Houston [14 Dist.] 2004, pet. ref’d) (not
designated for publication) (reviewing alleged jury charge error
on writ of habeas corpus for egregious harm even though the
appellant did not object at trial); Thacker v. State, 999 S.W.2d
56, 65 (Tex. App.——Houston [14 Dist.] 1999, pet. ref’d)
(requiring habeas applicant to prove that alleged unobjected-to
jury charge error denied her a fair and impartial trial).

                                 9
procedural rule does not render the rule inadequate.”22      Frazier

has not shown that the Texas contemporaneous objection rule does

not apply to his claim.     As a result, a procedural default

exists, and federal review is

precluded unless Frazier can overcome his procedural bar.23

     A state prisoner can overcome a procedural default by

demonstrating cause for the default and actual prejudice

resulting from the purported violation of federal law, or by

demonstrating that failing to consider the claim will result in a

fundamental miscarriage of justice.24      To show cause for the

default, Frazier must show that “he was impeded by some objective

factor external to the defense, such as governmental interference

or the reasonable unavailability of the factual basis for the

claim.”25    Frazier, however, has not advanced any external factor

that impeded his attorney from objecting to the jury charge, and

the factual basis for Frazier’s claim existed at trial.      Thus,

Frazier has not shown cause for his default.      Because he has not

shown cause, there is no need to determine whether Frazier

demonstrated actual prejudice.

     22
      Amos, 61 F.3d at 342; see also Bass v. Estelle, 705 F.2d
121, 122-23 (5th Cir. 1983) (declining to consider an occasional
act of grace by Texas courts as the failure to strictly or
regularly follow the state's contemporaneous objection rule).
     23
          Coleman v. Thompson, 501 U.S. 722, 750 (1991).
     24
          Coleman, 501 U.S. at 750.
     25
          McCleskey v. Zant, 499 U.S. 467, 468 (1991).

                                      10
     To demonstrate that the failure to consider his claim will

result in a fundamental miscarriage of justice,26 Frazier must

make a persuasive showing that he is actually innocent.27

Frazier, however, does not claim that he is innocent or advance

any argument about innocence.     Thus, he has not shown that a

fundamental miscarriage of justice will result.

     Frazier has not shown cause for his default and has failed

to demonstrate that a fundamental miscarriage of justice will

result; thus, Frazier has failed to overcome his procedural bar.

Consequently, reasonable jurists would not debate the district

court’s conclusion that the procedural default bars federal

review.     As a result, Frazier is not entitled to a COA on his

jury charge claim.

           Frazier’s Ineffective Assistance of Counsel Claim

     Frazier also maintains that his trial attorney was

ineffective for failing to investigate his background and for

failing to present mitigation evidence during the punishment

phase of his trial.     At trial, the prosecutor called several

punishment witnesses who testified about Frazier’s violent

nature.     Frazier’s attorney, however, did not call any witnesses.

     Frazier first complained about his attorney’s failure to

present mitigating evidence in his state habeas application.       To


     26
          Coleman, 501 U.S. at 750.
     27
          Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992).

                                      11
support his complaint, Frazier presented affidavits from his

grandmother and his aunt.   In those affidavits, the affiants

described how Frazier was abandoned by his mother when he was a

teenager and how his mother died shortly thereafter.   The

affiants presented Frazier as a good child who was left alone by

the death of his mother and who was dependent thereafter on his

aunt for support.   After considering the affidavits and the trial

record, the state habeas court determined that Frazier’s trial

attorney actually presented the information contained in the

affidavits by cross-examining the state’s punishment witnesses,

and thus concluded that the attorney was not ineffective in

failing to present the mitigating evidence.

     Frazier expanded his claim in his federal habeas proceeding.

In the district court, Frazier argued that his trial attorney was

unreasonable for failing to investigate the possibility that

Frazier’s family and friends could have provided evidence that

could have resulted in a life sentence in lieu of the death

penalty.   Frazier maintained that his trial attorney failed to

investigate numerous mitigating factors: beatings with a belt by

his step-father; his adaptability to prison life as evidenced by

good behavior and obtaining a GED; his involvement as a child in

his church and community; his reputation among his school

teachers, school administrators, and coaches; the neighborhood in

which he was reared; whether he was a leader or a follower; his

substance abuse; and potential emotional problems caused by the

                                12
death of his mother.   Frazier supported his claim with eighteen

affidavits which presented Frazier as a loving and well-behaved

child who went bad only after he lost his mother.   Frazier also

presented a mitigation prospectus in which a mitigation expert

opined that “there were factors present in the life of Mr.

Frazier which were not investigated and which might be shown to

be mitigating factors to the crime.”

     Considering Frazier’s expanded claim, the district court

observed that Frazier’s federal claim asserts a “legal argument

and evidentiary support that fundamentally differs from that

evidence anticipated by his state claim” and determined that

Frazier had not exhausted his claim to the extent that it

exceeded the evidence presented in state court.   As for the

exhausted portion of the claim, the district court determined

that the state habeas court’s resolution of the claim was

reasonable based on the evidence presented to the state habeas

court.   The court explained that although a reasonable attorney

making a prudent investigation into Frazier’s background would

have uncovered a great deal of potentially mitigating evidence,

nothing indicated that the result of the proceeding would have

been different had the attorney presented a mitigation case.

     Frazier seeks a COA to challenge the district court’s

resolution of his ineffective assistance of counsel claim.     In

seeking a COA, Frazier criticizes the state habeas court for not

focusing on the reasonableness of the investigation supporting

                                13
his trial attorney’s decision to not introduce mitigating

evidence.     Frazier relies on Wiggins v. Smith28 where the Supreme

Court explained that the focus in an ineffective assistance claim

is not on whether counsel should have presented a mitigation

case, but rather on whether the investigation supporting

counsel’s decision not to introduce mitigating evidence was

itself reasonable.29     Frazier, however, does not address the

issue of exhaustion, except to emphasize that the district court

struggled in reaching its determination.     Because Wiggins did not

change the requirement that a petitioner must exhaust his state

court remedies30 or the requirements for demonstrating

ineffective assistance of counsel,31 Frazier cannot show that

reasonable jurists would debate the district court’s treatment of

his claim.

     First, reasonable jurists would not debate the district

court’s determination that Frazier did not exhaust his federal

habeas claim.32     “A federal habeas petitioner must exhaust state


     28
          539 U.S. 510 (2003).
     29
          Wiggins, 539 U.S. at 522.
     30
          28 U.S.C. § 2254(b)(1).
     31
          Strickland v. Washington, 466 U.S. 668, 687 (1984).
     32
      See Slack, 529 U.S. at 484 (requiring a petitioner who
challenges the district court’s determination that a claim is
procedurally barred to show that reasonable jurists would find it
debatable whether the court was correct in its procedural
ruling).

                                      14
remedies before he can obtain federal habeas relief.”33        To

exhaust a claim in state court, a petitioner must fairly present

the substance of the claim to the state court.34        A petitioner

fails to satisfy the exhaustion requirement where he “‘advances

in federal court an argument based on a legal theory distinct

from that relied upon in the state court.’”35     He also fails to

satisfy the exhaustion requirement if he “presents newly

discovered evidence or other evidence not before the state courts

such as to place the case in a significantly different and

stronger evidentiary posture than it was when the state courts

considered it.”36

     Here, Frazier presented an evidentiary basis for his federal

claim that was significantly different from the evidence he

presented in state court.     In state court, Frazier complained

about his attorney’s failure to present a mitigation case and

contended that his attorney failed to investigate any possible

aggravating factors presented by the state.     In federal court, he

complained about the unreasonableness of the investigation that

served as the basis for his attorney’s decision not to present a

mitigation case.     Although the legal theories he relied on in

     33
          Carey v. Saffold, 536 U.S. 214, 220 (2002).
     34
          28 U.S.C. § 2254(b)(1).
     35
      Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001)
(citations omitted).
     36
          Brown v. Estelle, 701 F.2d 494, 495 (5th Cir. 1983).

                                    15
state court are essentially the same theories he advanced in

federal court, Frazier presented a significantly different

evidentiary basis for his federal claim.     The brief affidavits he

presented in state court present Frazier as a good boy who was

abandoned by his mother and left dependent on his aunt for

assistance.   The eighteen affidavits supporting his federal claim

present much more.    The affidavits describe a well-behaved and

sweet child who was very involved in his church and performed

well in school, but got involved with drugs and a bad crowd after

his mother died.   The affidavits describe Frazier’s poor family

social history, unstable home life, good school performance, and

non-violent nature.    Together, the federal affidavits suggest

that Frazier’s criminal conduct was due to bad friends, drugs, a

troubled and abusive childhood, living in the projects, a

follower’s mentality, and psychological issues.     This information

was not presented to the state court and places Frazier’s case in

a significantly different and stronger evidentiary posture than

it was when the state court considered it.     Although a habeas

petitioner may under some circumstances present evidence that was

not presented to the state court, evidence that places his claim

“in a significantly different legal posture must first be

presented to the state courts.”37     The affidavits Frazier

presented in the district court do not merely supplement the

     37
      Anderson v. Johnson, 338 F.3d 382, 386-87 (5th Cir. 2003)
(internal quotations omitted).

                                 16
information presented to the state court; instead, they present

numerous mitigating factors that were not presented to the state

court.     As a result, the district court’s procedural ruling that

Frazier failed to exhaust his claim is correct.     Thus, Frazier’s

claim is barred to the extent that it exceeds the evidentiary

basis presented in state court.

     Second, reasonable jurists would not debate the district

court’s resolution of Frazier’s unexhausted claim——that his

attorney was ineffective for failing to present mitigation

witnesses.     To establish ineffective assistance of counsel, a

criminal defendant must show that his attorney’s assistance was

deficient and that the deficiency prejudiced him.38     “To

establish deficient performance, a petitioner must demonstrate

that counsel's representation ‘fell below an objective standard

of reasonableness.’”39     “In any case presenting an

ineffectiveness claim, the performance inquiry must be whether

counsel's assistance was reasonable considering all the

circumstances.”40     To show prejudice, the defendant must show a

reasonable probability that, absent his attorney’s error, the

jury would have concluded that the balance of aggravating and


     38
      Strickland, 466 U.S. at 687; Hopkins v. Cockrell, 325 F.3d
579, 586 (5th Cir. 2003).
     39
      See Wiggins, 539 U.S. at 522 (quoting Strickland, 466 U.S.
at 688).
     40
          Strickland, 466 U.S. at 688.

                                   17
mitigating circumstances did not warrant the death sentence.41

     The state habeas judge determined that Frazier’s attorney

was not deficient——the first part of the test for ineffective

assistance of counsel——but the district court was troubled by the

lack of an explanation for why the attorney failed to investigate

the possibility that family members could provide mitigation

evidence.     Faced with the numerous affidavits Frazier presented

with his federal habeas petition, the district court questioned

the reasonableness of the attorney’s performance, but determined

that Frazier could not show that the result of his trial would

have been different even if the attorney had called mitigation

witnesses.

     Although the district court resolved this claim without

making a determination about deficient performance, the state

judge’s determination that the attorney was not deficient was not

an unreasonable application of clearly established federal law

for determining whether an attorney’s performance was

deficient.42     The trial attorney’s cross-examination of state

punishment witness Courtney La Font revealed that Frazier’s

mother had abandoned him when he was 15 and that his mother died


     41
          Id. at 695.
     42
      See Pondexter v. Dretke, 346 F.3d 142, 145 (5th Cir. 2003)
(explaining that a petitioner seeking habeas relief based on
ineffective assistance of counsel must show that the state
court’s adjudication of his claim constitutes an unreasonable
application of clearly established federal law).

                                   18
shortly afterwards.   La Font explained that his mother’s death

left Frazier feeling hurt, confused, and alone.   She stated that

Frazier lived periodically with his father and his aunt when his

mother was still living and that he started using drugs.     This

information is essentially the same information that was

presented in the affidavits of Frazier’s grandmother and aunt.

     In addition, the attorney’s cross-examination of two other

state punishment witnesses showed that Frazier had previously

completed a boot-camp program without disciplinary action and

that Frazier earned his GED while incarcerated.   This testimony

evidenced the possibility that Frazier could be incarcerated

without posing a danger to others.   Thus, Frazier’s trial

attorney presented mitigation evidence.

     As for the second part of the test for ineffective

assistance of counsel, reasonable jurists would not debate the

correctness of the district court’s determination that nothing

indicated that the result of Frazier’s trial would have been

different.   The state presented several punishment witnesses who

testified about various violent acts committed by Frazier.     This

testimony revealed that Frazier was a gang member, robbed a man

at age 15, raped his girlfriend at age 16, committed an

aggravated assault at age 17, was convicted for unlawfully

carrying a weapon while he was on probation at age 18, and

assaulted a 17-year-old at age 20.   The state’s punishment

evidence indicated that Frazier engaged in repeated and

                                19
escalating acts of violent behavior and that efforts to

rehabilitate him failed.

     The evidence portrayed Frazier as a violent person who poses

a danger to others.   Yet nothing in either the affidavits

presented to the state court——or even in the plethora of

affidavits presented to the federal court, were they, contrary to

this opinion, to be considered——suggests that the jury would have

considered a life sentence in lieu of the death penalty.     As the

district court observed, “[t]he instability of Frazier’s

childhood and his good nature as a youth, when compared to the

violent life he chose to live and failed to reform, would not

call for a reasonable probability of a different result.”    Thus,

no reasonable probability exists that, had Frazier’s attorney

called Frazier’s grandmother and aunt as mitigation witnesses,

the jury would have returned a life sentence.

     Frazier has not demonstrated that reasonable jurists would

debate the correctness of the district court’s resolution of his

claim.   As a result, he is not entitled to a COA on his

ineffective assistance of counsel claim.

                            Conclusion

     Because Frazier has not shown that reasonable jurists would

debate the district court’s resolution of his claims, the court

DENIES Frazier’s request for a COA.

APPLICATION DENIED.



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