                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                           No. 02-30909


                      CHRISTOPHER SEPULVADO,

                                               Petitioner-Appellant,

                              versus

   BURL CAIN, Warden, Louisiana State Penitentiary; RICHARD L.
                             STADLER,

                                           Respondents-Appellees.
_________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
                             (00-CV-596)
_________________________________________________________________
                          January 13, 2003

Before SMITH, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Christopher Sepulvado, a Louisiana state prisoner sentenced to

death for capital murder, requests a certificate of appealability

(COA) in order to appeal the denial of habeas relief.    DENIED.

                                I.

     In 1993, after being convicted of first-degree murder of his

six-year-old   stepson,   Sepulvado    was   sentenced   to   death.

(Sepulvado's wife, Yvonne Sepulvado, originally charged with first-




     *
          Pursuant to 5th Cir. 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this opinion should not be published and is not precedent except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.
degree murder, was convicted of manslaughter.   State v. Sepulvado,

672 So.2d 158, 161 n.1 (La. 1996).)

               On Thursday, March 5, 1992, [Sepulvado]
          married the victim's mother, Yvonne. The next
          day, Friday, the victim came home from school,
          having defecated in his pants. Yvonne spanked
          him   and   refused   to   give   him   supper.
          [Sepulvado] returned home from work at
          approximately 9:00 p.m.       That night, the
          victim was not allowed to change his clothes
          and was made to sleep on a trunk at the foot
          of his bed. On Saturday, the victim was not
          allowed to eat and was again made to sleep on
          the trunk in his soiled clothes. At around
          10:00 a.m. on Sunday, [Sepulvado] and the
          victim were in the bathroom, preparing to
          attend church services. [Sepulvado] instructed
          the victim to wash out his soiled underwear in
          the toilet and then take a bath. When the
          victim hesitated to do so, [Sepulvado] hit him
          over the head with the handle of a screwdriver
          several times with enough force to render him
          unconscious.   Thereafter,   the   victim   was
          immersed in the bathtub which was filled with
          scalding hot water.

               Approximately three hours later, at
          around 1:50 p.m., [Sepulvado] and his wife
          brought the victim to the emergency room at
          the hospital. At that time the victim was not
          breathing, had no pulse, and probably had been
          dead for approximately thirty to sixty
          minutes. All attempts to revive the victim
          were futile. The cause of death was attributed
          to the scald burns covering 60% of the
          victim's body, primarily on his backside.
          There were third degree burns over 58% of the
          body and second degree burns on the remaining
          2%. The scalding was so severe that the
          victim's skin had been burned away. In
          addition to the burns, medical examination
          revealed that the victim had been severely
          beaten. The victim's scalp had separated from
          his skull due to hemorrhaging and bruising.




                                2
           Also, there were deep bruises on the victim's
           buttocks and groin which were not consistent
           with accidental injury.

                At trial, [Sepulvado] admitted that he
           hit the victim with a screwdriver, but
           contended that the victim fell into the tub
           accidentally. However, the state presented
           expert testimony that the burn marks on the
           victim's body did not indicate he accidentally
           fell into the tub, since there were no signs
           of splash marks that would result from a
           struggle. The experts testified that the marks
           were consistent with the victim being dipped
           or immersed into the scalding water.

Id. at 162.

     Sepulvado’s conviction and sentence were affirmed by the

Louisiana Supreme Court.     Id. at 171.     The United States Supreme

Court denied certiorari.      Sepulvado v. Louisiana, 519 U.S. 934,

reh'g denied, 519 U.S. 1035 (1996).

     In 1997, Sepulvado filed for state post-conviction relief,

claiming: (1) ineffective assistance of counsel; (2) denial of due

process due to the termination of his counsel; (3) prosecutor’s

misstatements of law regarding mitigation; (4) State’s failure to

provide   him   necessary   funds   for   investigation   of   his   post-

conviction claims; (5) lethal injection violated the Louisiana and

United States Constitutions; (6) retroactive application of the

contemporaneous objection rule; (7) State’s failure to adequately

and timely notify him of sentencing issues and its intention to

introduce certain evidence; (8) unconstitutional court-ordered

psychiatric evaluation;       (9) improper jury instructions; (10)


                                    3
unconstitutionally     vague    application    of    “especially    heinous,

atrocious      or   cruel”     aggravating    circumstance;        and   (11)

discrimination in selection of grand jury forepersons.

     The state habeas judge had served as trial judge.         In 1998, an

evidentiary hearing was held on the ineffective assistance claims,

discussed     infra.     Both    of    Sepulvado’s     trial   counsel,    a

psychiatrist, and an expert defense attorney testified.

     In April 1999, that court denied post-conviction relief. And,

in March 2000, the Louisiana Supreme Court denied an application

for a supervisory or remedial writ.

     Later that month, Sepulvado filed for federal habeas relief,

pursuant to 28 U.S.C. § 2254.         He raised the same 11 issues as in

state court.    In late 2001, the district court denied the petition;

nevertheless, it ordered an evidentiary hearing on the grand jury

forepersons claim.     Sepulvado v. Cain, No. 00-596 (W.D. La. 21 Nov.

2001) (Original Opinion).       That December, pursuant to a Rule 59(e)

motion, the district court withdrew the habeas denial, pending the

evidentiary hearing.

     The evidentiary hearing was conducted by a magistrate judge in

April 2002.    That June, the magistrate judge recommended denial of

the forepersons claim. That August, the district court adopted the

recommendation and denied relief.          Sepulvado v. Cain, No. 00-596

(W.D. La. 9 Aug. 2002).




                                       4
      Sepulvado’s     COA     application    was       denied   the   next    month

(September 2002).

                                      II.

      Pursuant to the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), Sepulvado must obtain a COA in order to appeal the

habeas denial.       28 U.S.C. § 2253(c)(1)(A).             For the 11 claims

raised in his § 2254 petition, he seeks certification on six:                     (1)

ineffective      assistance    of   counsel;     (2)    discrimination       in   the

selection of grand jury forepersons; (3) unconstitutional, court-

ordered psychiatric evaluation; (4) prosecutor’s misstatements of

law regarding mitigation; (5) improper jury instructions; and (6)

retroactive application of the contemporaneous objection rule.

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

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

general, he must demonstrate “reasonable jurists could debate

whether (or, for that matter, agree that) the [federal habeas]

petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to

proceed further”.       Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted).                Another statement of the

standard is that Sepulvado must show “reasonable jurists would find

the   district    court’s     assessment    of   the     constitutional      claims

debatable or wrong”.        Id.




                                       5
      To obtain a COA for a claim denied on procedural grounds,

Sepulvado must not only make the above-described showing concerning

the merits of a claim, but also must show “jurists of reason would

find it debatable whether the district court was correct in its

procedural ruling”.         Id.

      Moreover, a COA request is viewed against the backdrop, under

AEDPA, for obtaining habeas relief.            In that regard, and if a COA

is granted, we review state court decisions only to determine

whether   they    were      “contrary   to,   or     involved   an   unreasonable

application of, clearly established Federal law” or were “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)(1)

& (2).

                                        A.

      Sepulvado contends that his trial counsel, Brown and Toups,

provided ineffective assistance, contrary to the Sixth Amendment.

To establish ineffective assistance, Sepulvado must satisfy the

well-known      two-prong      standard:        counsel’s       performance    was

deficient, falling below an objective standard of reasonableness;

and this deficient performance prejudiced the defense, such that

there is a reasonable probability that, but for such performance,

the   outcome    of   the    trial   would    have    been   different.       E.g.,

Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).




                                         6
       Sepulvado claims ineffective assistance at the trial's guilt

and    penalty   phases.         (In   addition    to   instances   of   claimed

ineffective      assistance      addressed    in    this   part,    Sepulvado's

ineffectiveness      claim    concerning      grand     jury   forepersons    is

addressed in part II.B.)

       In general, Brown was to take the lead at the guilt phase;

Toups, the penalty phase.          As noted, each testified at the state

habeas evidentiary hearing.             As discussed below, none of the

ineffectiveness claims satisfies the standard for receiving a COA.

                                         1.

       Sepulvado maintains:        Brown failed to interview a witness for

the State, Dr. McCormick, before questioning him at trial on the

defense theory that the murder was an “impulse” killing;                 instead

of interviewing that witness pre-trial, Brown relied on interview

notes made by Sepulvado’s prior attorney; Dr. McCormick answered

that    the    homicide    was     intentional,     not    impulsive,    thereby

discrediting the defense theory; and not having expected that

answer, Brown was unprepared to call his own expert to testify to

the impulsive nature of the killing.

       For this and all other ineffective assistance claims, the

state court ruled them “completely without a scintilla of merit”.

Having presided at trial, the state habeas judge noted:

              In no case either during the guilt-innocence
              phase or the penalty phase did this Court
              observe that either attorney['s] performance
              had fallen below an objective standard of
              reasonableness and that the dereliction had

                                         7
            prejudiced the defendant to the extent that
            the trial has been rendered unfair and the
            jury verdict on either guilt or innocence or
            penalty suspect.

     For the federal petition, the district court held counsel’s

failure to investigate the effectiveness of the “impulse” theory

was not deficient performance.            Noting that 14 witnesses testified

during    the    penalty    phase,     it      ruled    “Brown     conducted     ample

investigation in an effort to mitigate petitioner’s sentence”.

Original Opinion at 7.          More to the point, it ruled there had been

no showing that the introduction of the “impulse” theory would have

“altered the outcome of the trial”.               Id.

     Sepulvado has adduced no other evidence in support of the

“impulse” theory.        For example, he has not identified a witness

whose opinion would be contrary to Dr. McCormick’s.                     Reasonable

jurists would not find the district court’s assessment debatable or

wrong.

                                          2.

     Sepulvado claims Brown failed, during the penalty phase, to

offer    neuropsychological        test       results    showing     Sepulvado    was

positive   for    four     of   five   brain     dysfunction       factors.      This

constitutes deficient performance, according to Sepulvado, because

Toups (Sepulvado's other trial counsel) testified at the state

habeas evidentiary hearing that he would have brought such testing

to the jury’s attention.



                                          8
       As noted, the state court dismissed all of the ineffective

assistance claims as meritless.           The federal district court found

that      counsel    had       submitted      evidence        regarding      the

neuropsychological issue through the testimony of a clinical social

worker,    who   testified    about   the    “high   number    of   deaths   in

[Sepulvado]’s past, his childhood experiences and his alcoholism as

mitigating evidence”.        Original Opinion at 9.      The district court

ruled that counsel’s failure to perceive the need to “bolster this

expert with additional testimony” was a “tactical decision” that

“did not amount to a deficiency in representation”.              Id.

       The report containing the brain dysfunction analysis indicated

that such dysfunction would not mitigate responsibility for the

crime. For this and similar reasons, Brown decided not to open the

door to the introduction of such facts.          Reasonable jurists would

not find the district court’s assessment debatable or wrong.

                                      3.

       Sepulvado also challenges Toups’ comment in his penalty phase

opening statement that the decision facing the jury “would be a

tough one for [Toups]”.

       Again, the state court summarily dismissed the ineffective

assistance claims.      Although Sepulvado presented this claim in

federal district court, the court did not address it in its

opinion.




                                      9
       Notwithstanding the challenged statement, Toups encouraged the

jury to conclude that Sepulvado should be sentenced only to life in

prison.     When read in the context of Toups’ entire statement,

reasonable jurists would not debate whether the petition should

have been resolved in a different manner or that this issue is

adequate to deserve encouragement to proceed further.

                                       4.

       As   noted,    Toups   was     to    primarily    handle   Sepulvado's

representation during the penalty phase.                Nevertheless, Brown

participated in the representation for that phase.                     Sepulvado

contends Brown's performance was deficient at this stage because he

was:    “fatigued” and “stressed out” by the guilt phase; and at a

“psychological       disadvantage”,    having   been    the   losing   attorney

during the guilt phase.

       Again, the state court summarily held Sepulvado’s ineffective

assistance claims were meritless. Although the issue was presented

in federal district court, the court did not address it in its

opinion.

       Even if Brown’s participation could be considered deficient

performance, the record shows that Toups examined nine of the 14

penalty phase witnesses.      Also, Sepulvado has offered no basis for

finding the outcome of the penalty phase would have been different

had Toups conducted all of the examination.               Reasonable jurists

would not debate whether the petition should have been resolved in



                                       10
a different manner or that this issue is adequate to deserve

encouragement to proceed further.

                                     B.

     Sepulvado contends his due process and equal protection rights

were violated because the State has discriminated against black

venire   members   in    the   selection    of   grand   jury   forepersons.

Although Sepulvado is not black, he has standing to make the claim.

Campbell v. Louisiana, 523 U.S. 392 (1998).

     The   magistrate      judge,   after     the   evidentiary     hearing,

recommended     that    Sepulvado   had     established     a   prima   facie

discrimination claim.      The magistrate judge recommended, and the

district judge agreed, however, with the state habeas ruling that

the claim was procedurally barred.         The state court had ruled: “In

this case there was no objection, prior to the conviction, of the

grand jury process through a timely filing of a motion to quash.

This claim is therefore not properly before the Court....”              (That

court also ruled that the claim was meritless, because the court

had “appoint[ed] a number of minorities to serve as grand jury

foremen....”)

     “It is undisputable that under Louisiana law, a challenge to

the legality of the grand jury venire must be made by a pretrial

motion to quash.”       Williams v. Cain, 125 F.3d 269, 274 (5th Cir.

1997), cert. denied, 525 U.S. 859 (1998).                Sepulvado seeks to

overcome this procedural bar by claiming cause for the failure to


                                     11
move to quash and resulting prejudice.         Reasonable jurists would

not find the district court's assessment debatable or wrong.

                                     1.

     First, Sepulvado claims the failure to timely raise the issue

was caused by ineffectiveness of counsel.        Ineffective assistance

may be a cause for procedural default, but only if the attorney’s

performance was deficient under Strickland. Murray v. Carrier, 477

U.S. 478, 488 (1986).       Sepulvado contends only that counsel were

“deficient” for failing to raise the grand jury issue at trial.

Apparently, he claims this “deficiency” reached unconstitutional

levels as described in Strickland and incorporated by Murray.

     As the report and recommendation, adopted by the district

court,   stated:      “Counsel’s      performance    is    not    rendered

constitutionally deficient merely because he is insufficiently

prescient to file a motion in 1992 [when Sepulvado was indicted]

based on a rule of law that will not be announced until 1998 [in

Campbell]”.

     In short, prior to Sepulvado’s indictment (1992), Campbell

(1998) had not been decided.        And, Powers v. Ohio, 499 U.S. 400

(1991), had   held   only    that   white   defendants   had   standing   to

challenge a prosecutor’s use of peremptory strikes against black

potential jurors; grand jurors were not at issue.         Moreover, Hobby

v. United States, 468 U.S. 339 (1984), had earlier rejected a due




                                     12
process challenge to discrimination in the selection of a black

federal grand jury foreperson.

     Campbell did “not state a new Fifth Amendment equal protection

rule” and “was dictated by the Court’s precedents”.           Peterson v.

Cain, 302 F.3d 508, 513 (5th Cir. 2002).         On the other hand, this

does not mean that an attorney’s failure to raise such a claim in

1992 fell below the objective level of competence required by

Strickland.

     Absent such a deficiency, there is “no inequity in requiring

[Sepulvado] to bear the risk of attorney error that results in a

procedural default”.     Murray, 477 U.S. at 488.

                                       2.

     In the alternative, Sepulvado has not satisfied the COA

standard   concerning     the    prejudice   portion   for   “cause”     and

“prejudice”.    The     report   and    recommendation,   adopted   by   the

district court, noted:

           Petitioner has not attempted to articulate how
           the foreman selection process (in connection
           with a grand jury that indicts on mere
           probable cause found by 9 of 12 members)
           worked to his actual prejudice when he was
           convicted by a lawfully chosen petit jury of
           twelve persons who unanimously found him
           guilty beyond a reasonable doubt.

     Sepulvado states that, had a timely motion to quash been made,

the judgment would have been reversed on appeal on that basis; and,

on remand, he might have been offered a life sentence plea.               He

offers no basis for this conclusory plea-claim.

                                       13
     In the alternative, Sepulvado urges that, absent a plea on

remand, a second trial would not have resulted in the death

penalty.    Again, he provides no support for this conclusory claim.

(Along this line, Sepulvado does not make an “actual innocence”

claim as an alternative to a required showing of “cause” and

“prejudice”.)

                                    C.

     Sepulvado next claims the state court improperly ordered a

psychiatric evaluation for him.

                                    1.

     Both   the   state   and   district   court,   however,   noted   that

Sepulvado, at the time of that order, had filed a “Notice of

Defense based upon Mental Condition” and, therefore, ruled the

court-ordered examination was proper.          Original Opinion at 16.

Reasonable jurists would not find the district court’s assessment

debatable or wrong.

                                    2.

     Alternatively, Sepulvado complains that, for the evaluation,

he was not advised of his rights to remain silent and to an

attorney.     See Estelle v. Smith, 451 U.S. 454, 467-68 (1981).

Although this issue was raised in state court, that court did not

address it.

     The district court first noted that no evidence was adduced by

Sepulvado supporting these allegations.         Original Opinion at 16


                                    14
n.5. It then assumed arguendo that such a constitutional violation

occurred, but held the error was harmless because none of the

psychiatrist’s findings were introduced at trial. Original Opinion

at 17; see also, e.g., Kotteakos v. United States, 328 U.S. 750

(1946).    Reasonable jurists would not find the district court’s

assessment debatable or wrong.

                                     3.

     Sepulvado summarily claims his Eighth Amendment right to a

constitutionally sound sentencing procedure was compromised because

the existence of the evaluation caused him to strategically refrain

from “explor[ing] ... psychiatric defenses”. Although presented to

them, neither the state nor district court addressed this specific

issue in their opinions.

     Sepulvado does not describe what these claimed “psychiatric

defenses” would have been; nor does he claim they would have led to

a different outcome.      Reasonable jurists would not debate whether

the petition should have been resolved in a different manner or

that this issue is adequate to deserve encouragement to proceed

further.

                                     D.

     Sepulvado   claims    that,   during   voir   dire,   the   prosecutor

misstated the law concerning mitigating evidence.          See Lockett v.

Ohio, 438 U.S. 586 (1978).         The prosecutor stated:        prospective

jurors were to “consider” mitigating evidence to determine whether


                                     15
the mitigating factors “fit”; they should be “open minded” with

regard to the evidence; and “considering” the evidence did not

compel a juror to “accept” it.

     There was no contemporaneous objection.                 It does not appear

that either the state or federal court addressed whether this claim

is procedurally barred because of this failing. Nor does the State

assert such a bar here.

     The state court ruled the statements were not misstatements of

the law, and, in any event, did not justify post-conviction relief.

Likewise, the district court held the prosecutor did not misstate

the law.     Original Opinion at 13.

     Lockett holds jurors must not “be precluded from considering,

as a mitigating factor, any aspect ... that the defendant proffers

as a basis for a sentence less than death”.            438 U.S. at 604 (first

emphasis added).      Reasonable jurists would not find the district

court’s assessment debatable or wrong.

                                        E.

     Sepulvado claims the jury was improperly instructed on the

reasonable    doubt   standard.     This       claim   is    based    on   Cage   v.

Louisiana,     498    U.S.   39,   41        (1990):        an    instruction     is

unconstitutional if “a reasonable juror could have interpreted the

instruction to allow a finding of guilt based on a degree of proof

below that required by the Due Process Clause”.                  The Court refined

this test:    the inquiry is whether it is reasonably likely that the


                                        16
jury applied the instruction in an unconstitutional manner.                   See

Victor v. Nebraska, 511 U.S. 1, 6 (1994); Estelle v. McGuire, 502

U.S. 62, 72 n.4, (1991) (citing Boyde v. California, 494 U.S. 370,

379-80 (1990)).

     The jury was instructed:

                  It is sufficient that the State prove the
             guilt of the defendant beyond a reasonable
             doubt.

             ***

                  A reasonable doubt is not a mere possible
             doubt; it should be actual doubt. It is such
             a doubt as a reasonable person would seriously
             entertain. It is a doubt that one could have
             reason for.    It is an honest misgiving, or
             doubt, arising from proof or lack of proof in
             the case.

(Emphasis added.)        Sepulvado claims use of “actual doubt” and

“honest doubt” instructed the jury that, for acquittal, a standard

higher than “reasonable doubt” was required.

     Noting it was well aware of Cage when it instructed the jury,

the state court ruled that the instruction was a proper statement

of the law.        The district court ruled that, although the phrase

“actual doubt” was used, the instruction as a whole correctly

conveyed the concept of reasonable doubt.            Original Opinion at 21.

     Cage    held    unconstitutional      an    instruction   which    equated

“reasonable doubt” with “grave uncertainty” and “actual substantial

doubt”,     requiring    only   a   “moral      certainty”   rather    than    an

“evidentiary certainty”.        498 U.S. at 41.      The Court held “actual

                                      17
substantial doubt”, in that context, connoted, for acquittal, a

higher standard of doubt than “reasonable doubt”.                  Id.

      Although the trial court used the phrase “actual doubt”, it

did   not   include   a   substantiality       requirement.         Moreover,   by

comparison, Victor held the use of “moral certainty” did not render

it unconstitutional (that phrase is not in the instruction at

issue).     511 U.S. at 16.    In the light of the entire instruction,

reasonable jurists would not find the district court’s assessment

debatable or wrong.

                                       F.

      For his final claim, Sepulvado maintains his rights were

violated      by   the     arbitrary         application      of      Louisiana’s

contemporaneous objection rule.             Sepulvado's failure to identify

those claimed instances when an objection should have been made is

discussed below.

      State v. Smith, 554 So.2d 676, 678              (La. 1989), crafted, for

cases in which the death penalty was applicable, an exception to

the rule that the Louisiana Supreme Court would not review an error

for which an objection had not been made in the trial court;

instead,    unobjected-to     errors   would     be    reviewed,     despite    the

contemporaneous objection rule.

      Sepulvado’s trial (1993) occurred during the period between

the decisions in Smith (1989) and State v. Taylor, 669 So.2d 364

(La.), cert. denied, 519 U.S. 860 (1996).              For the guilt phase of


                                       18
trial, Taylor repudiated the exception to the contemporaneous

objection rule, even for those cases tried after Smith — as was

Sepulvado's.    669 So.2d at 369.

     On    Sepulvado's    direct    appeal,     decided      post-Taylor,   the

Louisiana Supreme Court held that defendants, including Sepulvado,

could not claim reliance on Smith, because they could not have

known, during the guilt phase, “if [they] would ultimately receive

the death penalty”.      672 So.2d at 162.

     State v. Wessinger, 736 So.2d 162 (La.), cert. denied, 528

U.S. 1050 (1999), extended this logic by repudiating the Smith

exception even for the penalty phase, but only applying that

repudiation prospectively.

     The state court held itself bound by Taylor, and thus denied

relief on this issue.     The district court noted that the failure to

make contemporaneous objections “may be raised as ineffective

assistance of counsel on post conviction relief”. Original Opinion

at 14.    It then reviewed the claimed failures to object and found

that “no Strickland violations had been committed”.               Id.

     Sepulvado makes no showing that his attorneys relied on Smith

for not objecting when Sepulvado believes they should have, during

the guilt phase. Along this line, Sepulvado does not even describe

these    unobjected-to    errors,    even     though   the    district   court

addressed them in its opinion and held no ineffective assistance.



                                     19
Reasonable jurists would not find the district court’s assessment

debatable or wrong.

                              III.

     For the foregoing reasons, each COA request is

                                                       DENIED.




                               20
