                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                 UNITED STATES COURT OF APPEALS            February 25, 2004
                      FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                       _______________________                  Clerk

                             No. 03-20656
                       _______________________


                       KEVIN CHRISTOPHER KINCY,

                                            Petitioner - Appellant,

                                versus

                    DOUGLAS DRETKE, Director,
             Texas Department of Criminal Justice -
                     Institutional Division,

                                             Respondent - Appellee.


          Appeal from the United States District Court
               for the Southern District of Texas
                  Civil Docket No. H-02-CV-1848


Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

          Kevin Christopher Kincy was convicted of capital murder

and sentenced to death for murdering Jerome Harville during the

course of a robbery.   After exhausting state remedies, Kincy filed

a § 2254 petition for a writ of habeas corpus in federal district

court raising eight grounds for relief. The district court granted

the state’s motion for summary judgment on all eight issues,



     *
      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this opinion should not be published and is not precedent except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.
dismissed Kincy’s petition, and refused to grant a certificate of

appealability (“COA”) on any issue raised.

           Kincy now seeks a COA from this court on five issues:

(1) whether he was denied due process and a fair trial because the

trial court upheld a witness’s invocation of the privilege against

self-incrimination; (2) whether he was denied due process because

he has evidence of actual innocence; (3) whether he was denied due

process because of the State’s suppression of impeachment evidence

pertaining to witness John Byrom; (4) whether he was denied due

process because the State presented materially false evidence

through two witnesses; and (5) whether his appellate counsel

provided constitutionally ineffective assistance by failing to

raise as error a witness’s invocation of her privilege against

self-incrimination.    We deny a COA on each claim.

                               BACKGROUND

           Terkisha Dawson testified at Kincy’s trial that prior to

the murder, Kincy and his cousin, Charlotte Kincy, spoke of their

plan to rob a man and steal his car and possessions.                Dawson

further   testified   that   the   plan   was   for   Charlotte,   who   was

romantically involved with the man and had been accepting money

from him, to seduce the man in his home to prevent him from setting

his alarm.    Kincy would then enter the home and, according to

Dawson’s testimony, kill the man.




                                    2
           In March 1993, Byron Brown, Kincy’s co-worker, accom-

panied Kincy and Charlotte to a house.        Brown testified that upon

entering a bedroom, he observed a man lying on the floor who he

later realized was dead.    Brown further testified that he became

frightened and left the house.       On March 26, 1993, co-workers of

Jerome Harville became concerned because of his absence from work.

They eventually notified the sheriff’s department and Harville was

discovered in his home, having been fatally shot in the head and

stabbed several times.      In addition, Harville’s home had been

ransacked and his Honda Accord, among other items, had been stolen.

The police uncovered prints in the home consistent with a person

wearing gloves.

           Dawson further testified that Kincy explained to her how

he surprised Harville in his home and shot him in the head.       Dawson

also testified that Charlotte admitted to stabbing Harville several

times.   Keenan Mosley, another of Kincy’s cousins, also testified

that Kincy displayed a gun he had stolen from Harville, made a list

of pros and cons concerning his chances of getting caught, and

mentioned having worn gloves.    In addition, Mosley testified that

she observed Kincy with a Honda Accord and a large amount of home

appliances and equipment.

           Police linked Kincy to the crime after locating both the

murder weapon and Harville’s stolen gun.        On April 6, 1993, an FBI

agent    spotted   Kincy   driving       Harville’s   Honda   Accord   on



                                     3
Interstate   10    in   Texas    near   the   Louisiana    border.      Police

apprehended Kincy in Louisiana after a lengthy high-speed chase.

            Both   Kincy   and   Charlotte    were    charged   with   capital

murder.   However, the State agreed to reduce Charlotte’s charge to

first degree aggravated robbery in exchange for Charlotte’s guilty

plea and her promise to testify against Kincy at trial.                The plea

bargain further stated that, should Charlotte choose not to testify

or fail to testify truthfully, the agreement would be void and the

State would be free to reinstate the capital murder charges.               The

plea bargain did not purport to guarantee Charlotte a specific

sentence.    However, Charlotte was not called as a witness in the

guilt/innocence phase of Kincy’s trial.              Nevertheless, the jury

convicted Kincy of capital murder.

            During the punishment phase of the trial, Kincy indicated

that he wished to call Charlotte as a witness.            Charlotte was sworn

in and, on the advice of counsel, indicated her desire to invoke

her Fifth Amendment privilege against self-incrimination.               Kincy’s

attorney objected, arguing that by pleading guilty Charlotte had

waived her Fifth Amendment privilege.           The trial court disagreed

and allowed Charlotte to invoke her privilege.              Kincy’s attorney

then stated that, if she had testified, Charlotte would have

verified that she was “the organizer, the planner, the schemer”

behind the crime.

            The jury sentenced Kincy to death, and he unsuccessfully

appealed to the Texas Court of Criminal Appeals.             Kincy v. State,

                                        4
No.   72,246   (Tex.   Crim.   App.   1998)   (unpublished).   Once   his

conviction and sentence had been affirmed, Kincy filed a state

habeas application in the trial court.        Based on the trial court’s

findings of fact and conclusions of law and its own review, the

Court of Criminal Appeals denied habeas relief.          Ex parte Kincy,

No. 50,266-01 (Tex. Crim. App. Nov. 21, 2001) (unpublished).           On

August 29, 2002, Kincy filed a petition for writ of habeas corpus

in federal district court.

                                DISCUSSION

           Kincy’s § 2254 habeas petition is subject to the Anti-

terrorism and Effective Death Penalty Act of 1996 (AEDPA).            See

Penry v. Johnson, 532 U.S. 782, 792 (2001).          AEDPA mandates that

Kincy obtain a COA before he can appeal the district court’s denial

of habeas relief.      28 U.S.C. § 2253(c)(1) (2000).     Indeed, “until

a COA has been issued federal courts of appeals lack jurisdiction

to rule on the merits of appeals from habeas petitioners.”       Miller-

El v. Cockrell, 537 U.S. 322, 336 (2003).

           A COA will issue only when the petitioner has made “a

substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336.              A

petitioner achieves the requisite showing by demonstrating that

“reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different




                                      5
manner or that the issues presented were adequate to deserve

encouragement to proceed further.”      Id.

          The Supreme Court has admonished that “a COA ruling is

not the occasion for a ruling on the merit of petitioner’s claim.

. . .”    Id. at 331.     Rather, this court should engage in an

“overview of the claims in the habeas petition and a general

assessment of their merits.”   Id. at 336.    “Indeed, 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.

          Even if the petitioner succeeds in obtaining a COA, he is

not necessarily entitled to habeas relief.            “To prevail on a

petition for writ of habeas corpus, a petitioner must demonstrate

that the state court proceeding ‘resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the

United States.’”   Robertson v. Cockrell, 325 F.3d 243, 247-48 (5th

Cir. 2003) (en banc) (quoting 28 U.S.C. § 2254(d)(1) (2000)).

Before this court may grant habeas relief under the “unreasonable

application” standard, “the state court’s application must be more

than merely incorrect.”   Id. at 248.    Rather, the more appropriate

inquiry is whether the “state court’s application of clearly

established federal law was objectively unreasonable.”       Cotton v.

Cockrell, 343 F.3d 746, 750 (5th Cir. 2003).



                                 6
1.   Witness’s Invocation of Privilege Against Self-Incrimination
     and Ineffective Assistance of Counsel

            Kincy first seeks a COA with respect to the district

court’s failure to grant habeas relief based on the trial court’s

recognition       of    Charlotte     Kincy’s      privilege       against      self-

incrimination.         As discussed supra, the State originally charged

Charlotte with capital murder, but agreed to dismiss that charge

and replace it with first degree aggravated robbery in exchange for

Charlotte’s guilty plea and promise to testify against Kincy at

trial.     The carrot came with a stick:              if Charlotte failed to

perform her end of the bargain in any way (by refusing to testify

or testifying untruthfully), the capital murder charge would be

reinstated.    Moreover, the plea bargain did not purport to secure

Charlotte a particular sentence.              At the time of Kincy’s trial,

Charlotte had not yet been sentenced.

            For    whatever    reason,       the   State   chose    not    to   call

Charlotte as a witness during Kincy’s trial.                When called to the

stand by Kincy during the punishment phase, Charlotte invoked her

Fifth Amendment privilege against self-incrimination and refused to

testify.    To no avail, Kincy’s counsel objected that by pleading

guilty Charlotte had waived her Fifth Amendment rights.                   Charlotte

exercised the privilege.1           Kincy now contends that he was denied


     1
      Kincy’s counsel then proffered that Charlotte would have
testified that she was the “organizer” of the crime and recruited
Kincy to participate. In his federal habeas petition, Kincy

                                         7
due process and a fair trial by the exclusion of Charlotte’s

testimony.

           The Supreme Court has noted that “as a general rule, []

where there can be no further incrimination, there is no basis for

the assertion    of   the    privilege    [against   self-incrimination].”

Mitchell   v.   United   States,   526    U.S.   314,   326   (1999).      This

“principle applies to cases in which the sentence has been fixed

and the judgment of conviction has become final.”                Id.     When,

however, an individual enters a guilty plea but has not yet been

sentenced, that individual “may have a legitimate fear of adverse

consequences from further testimony” and may invoke the privilege

against self-incrimination.        Id.

           In addition, courts of appeals that have considered the

issue,   including    this    circuit,    have   uniformly     held     that   a

codefendant who pleads guilty pursuant to a plea agreement retains

his Fifth Amendment rights prior to being sentenced.              See United



argues that Charlotte also would have testified that Kincy was
acting in self-defense when he shot Harville. Kincy further
argues that the State did not call Charlotte as a witness because
it wanted to keep the jury unaware of the possible self-defense
justification. To support this contention, Kincy points to a
1995 letter in which Charlotte asks Kincy to write a letter in
aid of her efforts to obtain parole. Charlotte claims in the
letter that Kincy was acting in self-defense when he shot
Harville.

          Kincy also points to a written and signed, but unsworn,
statement by Charlotte that essentially echoes the events
described in her 1995 letter. The statement was prepared by an
investigator working for Kincy’s counsel.

                                      8
States v. Kuku, 129 F.3d 1435, 1437-38 (11th Cir. 1997); United

States v. Hernandez, 962 F.2d 1152, 1161 (5th Cir. 1992);                   United

States v. Lugg, 892 F.2d 101, 102-3 (D.C. Cir. 1989).                   The fact

that the codefendant agrees, as part of the plea agreement, to

testify against the accused does not affect his privilege against

self-incrimination.          A   plea   agreement,      as   opposed   to   formal

statutory immunity, does not afford the prosecution the right to

force a witness to testify.             See Kastigar v. United States, 406

U.S. 441, 448-49 (1972) (formal statutory immunity allows the

prosecution to compel the immunized witness to testify); Lugg, 892

F.2d at 103 (distinguishing plea agreements from formal immunity).

Therefore, a witness may decide not to testify, irrespective of an

agreement to the contrary, and the prosecution may not compel such

testimony.

            In this case, Charlotte entered into a plea agreement

whereby she agreed to testify against Kincy.                 But because she had

not yet been sentenced at the time of Kincy’s trial and the plea

agreement    in   no   way   guaranteed      her   a   specific   sentence,    she

retained her Fifth Amendment rights.2              See Mitchell, 526 U.S. at

326. Neither the state, however, nor Kincy could require Charlotte



     2
      Kincy’s trial counsel proffered that Charlotte would
testify to being the “organizer” of the crime. If this
representation were true, Charlotte certainly possessed a legiti-
mate fear that any testimony she might give concerning
culpability could conceivably affect her yet-to-be-determined
sentence. See Mitchell, 526 U.S. at 326.

                                         9
to testify as a result of the contractual plea agreement alone.

Reasonable jurists could not debate the district court’s conclusion

that Charlotte retained her Fifth Amendment privilege against self-

incrimination. Further, the state courts’ similar decisions cannot

have been contrary to or an unreasonable application of federal

law.   We deny Kincy’s application for COA on this claim.

           Tied to this claim, Kincy seeks a COA based on the

ineffective assistance of his appellate counsel for failing to

attack the trial court’s order allowing Charlotte to remain silent.

An   ineffective   assistance    claim   is   governed   by   the    standard

articulated by the Supreme Court in Strickland v. Washington, 466

U.S. 668 (1984).    To succeed on his claim, Kincy must “prove that

his counsel’s performance was deficient and that the deficiency

prejudiced his defense.”       United States v. Kimler, 167 F.3d 889,

893 (5th Cir. 1999).      An attorney’s failure to raise a meritless

argument cannot form the basis of an ineffective assistance claim

because (a) such performance is not deficient, and (b) the result

of the proceeding would not have been different had the issue been

raised.    Clark v. Collins, 19 F.3d 959, 966 (5th Cir.), cert.

denied,   115   S.Ct.   432   (1994).    Reasonable   jurists       could   not

disagree or find wrong the district court’s decision that the state

habeas court’s rejection of this claim was not contrary to or an

unreasonable application of federal law.          We deny a COA on this

issue.


                                    10
2.   Actual Innocence Evidence

            Kincy next seeks a COA based on the district court’s

rejection   of   his   actual   innocence   claim.   Kincy   argues   that

Charlotte’s 1995 letter and subsequent written statement prove that

he acted in self-defense and is innocent of the crime of capital

murder.3    However, it has long been the rule in this circuit that

claims of actual innocence based on newly discovered evidence alone

are not cognizable under federal habeas corpus.4              Herrera v.

Collins, 954 F.2d 1029, 1034 (5th Cir. 1992), aff’d, 506 U.S. 390

(1993); Bryant v. Scott, 28 F.3d 1411, 1420 n.14 (5th Cir. 1994);

Lucas v. Johnson, 132 F.3d 1069, 1074 (5th Cir. 1998).           Because

reasonable jurists could not disagree or find wrong the conclusion




     3
      Charlotte alleges that she and Kincy went to Harville’s
home because Harville owed Kincy money. She further alleges that
after telling Kincy he would give him the money, Harville pulled
a gun and the two struggled. Finally, Charlotte states that it
was only after Harville said to Kincy “I’m going to kill you,”
that Kincy shot Harville. Charlotte’s written statements do not,
among other things, explain why Charlotte subsequently stabbed
the victim numerous times.
     4
      It should also be noted that the Supreme Court has
expressed its reluctance to rely on affidavit testimony in this
regard because of the absence of cross-examination. Herrera, 506
U.S. at 417. In addition, the affidavits in the instant case,
like those presented in Herrera, were issued years after the
crime and resulting trials occurred. Id. Finally, no
explanation has been given why Kincy, who was presumably aware of
his self-defense justification, did not present that theory to
the jury at his trial.

                                    11
that Kincy’s actual innocence claim is not cognizable, we deny his

application for COA on this claim.5

3.   Suppression   of    Impeachment     Evidence    and    Materially   False
     Evidence

          Finally,      Kincy   seeks    a   COA    based   on   the   alleged

suppression of impeachment evidence pertaining to John Byrom and

the State’s alleged offer of materially false evidence provided

through John Byrom and Keenan Mosley.         Kincy relies on affidavits

from both Byrom and Mosley in which they state that they lied, at

the behest of prosecutors, when giving their trial testimony.

Kincy does not dispute that these claims were not presented to the

state courts on direct appeal or state habeas review.

          “Federal courts cannot grant habeas relief unless the

applicant has presented the claims to the state court and exhausted

the remedies available in state court.”            Cotton, 343 F.3d at 755;

28 U.S.C. § 2254(b) (2000).         Kincy’s failure to present these

claims to the state courts renders them unexhausted.             Moreover, a

“procedural default. . . occurs when a prisoner fails to exhaust



     5
      While the district court noted that Kincy’s actual
innocence claim was not cognizable under federal habeas corpus,
the court also believed the claim to be procedurally defaulted
and therefore not deserving of further attention. We do not
address the district court’s alternative ground for denying
Kincy’s petition for writ of habeas corpus because, as discussed
supra, the actual innocence claim, standing alone, is not a
cognizable claim in this circuit. Thus, Kincy’s substantive
actual innocence claim is not an issue that “deserve[s]
encouragement to proceed further.” Miller-El, 537 U.S. 336.

                                    12
available state remedies and the court to which the petitioner

would be required to present his claims in order to meet the

exhaustion requirement would now find the claims procedurally

barred.”   Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997)

(internal citations and quotations omitted).    Texas law requires

habeas petitioners to present all of their state habeas grounds in

the first petition.6   TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(a)

(Vernon Supp. 2004).     Article 11.071 has been held to be an

adequate state procedural bar to federal review.      Barrientes v.

Johnson, 221 F.3d 741, 758-59 (5th Cir. 2000) (noting that article

11.071 codifies the Texas common law abuse of the writ doctrine);

Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir. 1998);    Nobles, 127

F.3d at 423. Kincy’s claims are therefore procedurally defaulted.7

           A federal court may not consider a petitioner’s defaulted

claims “unless the prisoner can demonstrate cause for the default

and actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the claims

will result in a fundamental miscarriage of justice.”    Coleman v.

Thompson, 501 U.S. 722, 750 (1991).   Kincy attempts to prove cause




     6
      Narrow exceptions allow the state courts to entertain new
claims on successive habeas petitions, however, Kincy does not
argue that any of the exceptions would be applicable in his case.
     7
      Indeed, Kincy does not dispute this fact in his brief to
this court.

                                 13
for his     default   by   highlighting       the   inadequacy      of   the   state

corrective process as a whole.8

            Recognizing that this circuit has held that ineffective

assistance of state habeas counsel cannot serve as cause that

excuses procedural default, Rudd v. Johnson, 256 F.3d 317, 319-20

(5th Cir. 2001), Kincy attempts to construe his complaint as one

against the state corrective process as a whole.                 In particular,

Kincy complains that the Texas process results in the appointment

of incompetent state habeas counsel because of the lack of guiding

standards    and   that    the   Texas    Court     of   Criminal    Appeals    has

“abdicated” its role in the process.            However, this court has also

held unequivocally that “infirmities in state habeas proceedings do

not constitute grounds for relief in federal court.”                     Beazley v.

Johnson, 242 F.3d 248, 271 (5th Cir. 2001) (quoting Trevino v.

Johnson, 168 F.3d 173, 180 (5th Cir. 1999)) (finding petitioner’s

claim of ineffective state process not cognizable).                         Because

reasonable jurists could not debate the conclusion that Kincy


     8
      To prove that a fundamental miscarriage of justice has
occurred, a petitioner may make a showing of actual innocence.
Herrera, 506 U.S. at 404. In this regard, an actual innocence
claim serves as “a gateway through which a habeas petitioner must
pass to have his otherwise barred constitutional claim considered
on the merits.” Id. Although Kincy makes a substantive claim of
actual innocence, he does not argue that actual innocence
constitutes a fundamental miscarriage of justice for the purposes
of procedural default. The failure to raise an issue on appeal
constitutes waiver of that argument. United States v.
Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000). In any event, his
only evidence of actual innocence consists of the highly
debatable, unsworn statements of Charlotte. See fn. 3 supra.

                                         14
failed to present cognizable claims of cause and prejudice that

would save his procedurally defaulted claims, we deny a COA on

these evidentiary issues.

                            CONCLUSION

          Because we DENY Kincy’s application for COA on each of

the issues raised, we lack jurisdiction to review the district

court’s denial of habeas relief.

          COA DENIED.




                                15
