     Case: 11-70023     Document: 00511891622         Page: 1     Date Filed: 06/19/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           June 19, 2012

                                       No. 11-70023                        Lyle W. Cayce
                                                                                Clerk

BILL DOUGLAS GATES,

                                                  Petitioner-Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-2702


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Bill Douglas Gates was convicted of murder in Texas state court and was
sentenced to death. The district court denied his federal habeas relief and
refused to certify any issues for appeal. Gates is now before the court seeking
a certificate of appealability. For the following reasons, we deny his application.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-70023   Document: 00511891622      Page: 2   Date Filed: 06/19/2012



                                 No. 11-70023

                                        I.
                                       A.
      In the early morning of December 14, 1999, Lorenzo Smith found the body
of his friend, Elfreda Gans, in the bathtub of her apartment. Her naked body
bore signs of strangulation and sexual assault. When police arrived, blood and
cleaning supplies were in the bathroom, and several of the bathroom surfaces
appeared to have been wiped clean. A search of the rest of Gans’s apartment
revealed blood on her bedding and a bloody bandage on the bedroom floor.
      Gates was arrested and charged with Gans’s murder. While awaiting
trial, Gates was incarcerated in the Harris County, Texas jail with James
Jackson. At trial, Jackson testified that Gates said that he went to Gans’s
apartment on the night of her murder for the sole purpose of trading cocaine for
sex. According to Jackson, Gates told him that after he and Gans got into an
altercation, he hit Gans and choked her until her body became limp. He then
tried to clean up the area before leaving. Gates also told Jackson that he later
realized that he left a bandage from his injured finger at Gans’s apartment.
      After extensive voir dire, Gates’s criminal trial began on October 23, 2000.
Over the course of several days, the prosecution presented testimonial and
physical evidence linking Gates to Gans’s murder. For example, the prosecution
presented evidence indicating that Gates’s fingerprint was located on the wall
that was next to the bathtub where Gans’s body was found. According to the
examiner who found it, the fingerprint appeared to have been made while the
person was leaning against the wall and placing something in the bathtub. In
addition, the state presented evidence establishing that blood stains found in
Gans’s bedroom contained DNA that matched Gates’s DNA. On October 31, the
defense rested and the case was submitted to the jury. That same day, the jury
returned a guilty verdict.



                                        2
  Case: 11-70023    Document: 00511891622      Page: 3    Date Filed: 06/19/2012



                                  No. 11-70023

      Gates’s sentencing hearing began on November 1, 2000. The prosecution
put on several witnesses who testified about Gates’s lengthy criminal history.
Among the witnesses who testified was Michael Camero, a fellow inmate at the
Harris County Jail who stated that Gates had threatened to strangle him in his
sleep. The defense, on the other hand, did not call any witnesses. On November
2, the jury answered the special punishment issues in a manner requiring the
imposition of a death sentence. Finding no error in the judgment, the Texas
Court of Criminal Appeals affirmed Gates’s conviction on September 18, 2002.
                                        B.
      Gates subsequently filed a state application for writ of habeas corpus
pursuant to Texas Code of Criminal Procedure article 11.071. In his application,
Gates presented ten allegations challenging the validity of his conviction and
death sentence.    Without holding an evidentiary hearing, the trial court
recommended that Gates’s petition be denied. After reviewing the record, the
Texas Court of Criminal Appeals denied him state habeas relief on August 20,
2008. Ex parte Gates, No. 69637-01, 2008 WL 3856718, at *1 (Tex. Crim. App.
Aug. 20, 2008).
      On August 19, 2009, Gates filed a postconviction petition in federal district
court. In his petition, he presented six claims for federal habeas relief. The
following month, Gates filed a motion to stay the district court proceedings so
that he could exhaust the first five of these claims. As recognized by Gates,
these five claims were not presented in his first state postconviction petition.
The district court granted this motion and stayed the federal proceedings while
Gates went back to state court to exhaust these claims.
      In November 2009, Gates filed an application for state postconviction relief
that he labeled as an initial application. According to Gates, this application
was actually his initial state postconviction petition “because the pleading
previously filed on [his] behalf was not actually a habeas application in

                                        3
   Case: 11-70023    Document: 00511891622       Page: 4   Date Filed: 06/19/2012



                                   No. 11-70023

contemplation of Texas law.” On May 5, 2010, the Texas Court of Criminal
Appeals dismissed his application because the claims it contained “fail[ed] to
meet the dictates of [Texas Code of Criminal Procedure] Article 11.071, § 5.” Ex
parte Gates, No. 69637-01, 2010 WL 1795758, at *1 (Tex. Crim. App. May 5,
2010).
                                         C.
      On June 22, 2010, the district court lifted the stay and reopened Gates’s
case. The state then moved for summary judgment. In its supporting brief, the
state argued that the five claims Gates tried to exhaust were procedurally
defaulted because the Texas Court of Criminal Appeals disposed of the claims
on adequate and independent state grounds. Additionally, the state asserted
that Gates’s remaining claim lacked merit. In response, Gates argued that these
five claims were not procedurally defaulted and maintained that his remaining
claim was meritorious.
      In May 2011, the district court issued a memorandum and order resolving
the state’s motion for summary judgment. In its opinion, the district court
concluded that Gates’s first five claims were procedurally defaulted and that he
had failed to overcome his default. Specifically, it held that the Texas Court of
Criminal Appeals’s rejection of these claims based on Texas Code of Criminal
Procedure article 11.071, § 5 precluded federal habeas review. Along with
denying Gates relief on his sixth claim, the district court also refused to issue a
certificate of appealability.
      Gates is now before the court requesting a certificate of appealability. In
his application for a certificate, Gates sets forth the same six claims he initially
presented to the district court. All six claims aver violations of his constitutional
right to effective trial counsel. Specifically, Gates alleges that he was denied this
right because his trial counsel: (1) did not investigate and present readily
available evidence in mitigation of his punishment; (2) excused without oral

                                         4
   Case: 11-70023   Document: 00511891622      Page: 5   Date Filed: 06/19/2012



                                  No. 11-70023

examination every venire member who indicated on his or her written
questionnaire a categorical opposition to the death penalty; (3) did not object to
hearsay testimony indicating that he had threatened Camero; (4) failed to object
on Confrontation Clause grounds to testimony indicating that he had threatened
Camero; (5) did not object to testimony describing his aggressive behavior
towards police who had entered his home to arrest him; and (6) failed to object
to a comment by the prosecution that allegedly addressed his failure to testify.
                                       II.
                                       A.
      As mandated by federal statute, a state prisoner seeking a writ of habeas
corpus has no absolute entitlement to appeal a district court’s denial of his
petition. 28 U.S.C. § 2253. Before an appeal may be entertained, a prisoner who
was denied habeas relief in the district court must first seek and obtain a
certificate of appealability (“COA”) from a circuit justice or judge. Id. 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,
335 (2003).
      A COA will issue only if the requirements of Section 2253 have been
satisfied. The COA determination under this section requires an overview of the
claims in the habeas petition and a general assessment of their merits. The
analysis used to arrive at a COA determination varies on whether the district
court denied the petition on procedural grounds or on the merits. “When the
district court denies a habeas petition on procedural grounds without reaching
the prisoner’s underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

                                        5
   Case: 11-70023     Document: 00511891622     Page: 6   Date Filed: 06/19/2012



                                  No. 11-70023

      To be clear, “[d]etermining whether a COA should issue where the petition
was dismissed on procedural grounds has two components, one directed at the
underlying constitutional claims and one directed at the district court’s
procedural holding.” Id. at 484-85. “Section 2253 mandates that both showings
be made before the court of appeals may entertain the appeal.” Id. at 485.
“Each component of the [Section 2253(c)] showing is part of a threshold inquiry,
and a court may find that it can dispose of the application in a fair and prompt
manner if it proceeds first to resolve the issue whose answer is more apparent
from the record and arguments.” Id.
      In contrast, where “a district court has rejected the constitutional claims
on the merits, the showing required to satisfy [Section 2253(c)] is
straightforward: The petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong.” Id. at 484. As the Supreme Court has made clear, “a court of appeals
should not decline the application for a COA merely because it believes the
applicant will not demonstrate an entitlement to relief.” Miller-El, 537 U.S. at
337. Rather, for purposes of determining whether a COA should issue, “[t]he
question is the debatability of the underlying constitutional claim, not the
resolution of that debate.” Id. at 341. “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, 694 (5th Cir. 2005) (quoting Hernandez
v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000)).
                                        B.
      The district court dismissed Gates’s first five claims on procedural default
grounds before denying his sixth claim on the merits. We will consider these
rulings separately.



                                        6
   Case: 11-70023    Document: 00511891622      Page: 7    Date Filed: 06/19/2012



                                  No. 11-70023

                                         1.
      A federal habeas claim is procedurally defaulted when the state court has
based its rejection of the claim on an adequate and independent state law
ground. Hughes v. Quarterman, 530 F.3d 336, 341 (5th Cir. 2008). Gates does
not dispute that Texas Code of Criminal Procedure article 11.071, § 5 (“Section
5”) is an adequate basis for the Texas Court of Criminal Appeals’s (“TCCA”)
rejection of his first five claims. And rightfully so. Balentine v. Thaler, 626 F.3d
842, 857-58 (5th Cir. 2010) (recognizing that Section 5 is an adequate state law
ground for rejecting a claim). Thus, the issue the district court had to decide in
reviewing Gates’s habeas petition was whether the TCCA’s rejection of his first
five claims on Section 5 grounds was independent of the underlying merits of his
federal constitutional claims. We begin our analysis of this issue with Section
5’s text.
      Section 5(a) provides that “[i]f a subsequent application for a writ of
habeas corpus is filed after filing an initial application, a court may not consider
the merits of or grant relief based on the subsequent application unless the
application contains sufficient specific facts establishing” one of the following:

      (1) the current claims and issues have not been and could not have
      been presented previously in a timely initial application or in a
      previously considered application filed under this article or Article
      11.07 because the factual or legal basis for the claim was
      unavailable on the date the applicant filed the previous application;

      (2) by a preponderance of the evidence, but for a violation of the
      United States Constitution no rational juror could have found the
      applicant guilty beyond a reasonable doubt; or

      (3) by clear and convincing evidence, but for a violation of the
      United States Constitution no rational juror would have answered
      in the state’s favor one or more of the special issues that were
      submitted to the jury in the applicant’s trial under Article 37.071,
      37.0711, or 37.072.

                                         7
   Case: 11-70023    Document: 00511891622       Page: 8   Date Filed: 06/19/2012



                                   No. 11-70023


Tex. Code of Crim. Proc. art. 11.071, § 5(a). Texas Code of Criminal Procedure
Article 11.071, § 5(c) requires a successive state habeas application to be
dismissed as an abuse of the writ unless it can satisfy the requirements of one
of the three subsections of Section 5(a). Id. at § 5(c).
      In his application for a COA, Gates asserts that the TCCA’s dismissal
order rejecting his first five claims did not specify whether it was based on a
state procedural rule or whether it was predicated on the merits of his federal
constitutional claims. According to Gates, without a clear statement of the basis
for its dismissal, we should interpret the TCCA’s dismissal as having been
interwoven with one of his federal constitutional claims, namely, his claim under
Wiggins v. Smith, 539 U.S. 510 (2003). Because it must have been interwoven
with this claim, he contends that the TCCA’s dismissal of his claims was not
independent of federal law. Accordingly, he suggests that his claims are not
procedurally defaulted because the TCCA’s dismissal was not based on
independent state grounds.
      Gates’s argument is unpersuasive. Federal courts on habeas corpus
review of state prisoner claims will “presume that there is no independent and
adequate state ground for a state court decision when the decision ‘fairly appears
to rest primarily on federal law, or to be interwoven with the federal law, and
when the adequacy and independence of any possible state law ground is not
clear from the face of the opinion.’” Coleman v. Thompson, 501 U.S. 722, 734-35
(1991) (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). “In habeas,
if the decision of the last state court to which the petitioner presented his federal
claims fairly appeared to rest primarily on resolution of those claims, or to be
interwoven with those claims, and did not clearly and expressly rely on an
independent and adequate state ground, a federal court may address the
petition” Id. at 735.


                                         8
   Case: 11-70023    Document: 00511891622      Page: 9    Date Filed: 06/19/2012



                                  No. 11-70023

      Here, the TCCA’s order is silent on the basis for its dismissal under
Section 5. Because it is silent, we must look to the arguments made to the TCCA
to ascertain the basis for its order. Balentine, 626 F.3d at 854. As we stated
earlier, Texas allows a subsequent application by a state prisoner if the
application contains sufficient specific facts satisfying one of three requirements.
In his second application to the TCCA, Gates did not rely on one of Section 5(a)’s
three criteria that would have provided him with a basis to file a subsequent
state habeas petition. Instead, he maintained that the lawyer who filed his first
state habeas petition “was no counsel at all in the meaningful sense of the word,
and that the document [the lawyer] filed on [his] behalf was not an application
for writ of habeas corpus in fact.”
      While somewhat creative, this approach did not provide the TCCA with an
authorized basis for accepting Gates’s second state habeas petition. Section 5(a)
states that a court “may not consider the merits or grant relief based on [a]
subsequent application” unless the application contains specific facts satisfying
one of the three aforementioned criteria. Tex. Code of Crim. Proc. art. 11.071,
§ 5(a). If it determines that Section 5(a)’s requirements have not been satisfied,
the TCCA “shall issue an order dismissing the application as an abuse of the
writ under [Section 5].” Id. at § 5(c). Since he did not even attempt to satisfy
one of Section 5(a)’s requirements, the TCCA could have used this failure to
summarily dismiss Gates’s subsequent state habeas application on a state
procedural ground that was completely independent of federal law. Put simply,
the TCCA did not need to resort to federal law to determine that Gates’s second
state habeas application was a subsequent application under state law, nor did
it need federal law to figure out that Gates failed to present an authorized
reason under state law for it to accept his subsequent application. In light of the
TCCA’s silence on the basis for its Section 5 dismissal and Gates’s argument in
his subsequent state habeas petition, there is no fair indication that the TCCA

                                         9
  Case: 11-70023      Document: 00511891622         Page: 10     Date Filed: 06/19/2012



                                      No. 11-70023

reached the merits of his federal constitutional claims. Cf. Balentine, 626 F.3d
at 854 (stating that there “must be more than silence” for a federal court to
conclude that the state court reached the merits of a petitioner’s federal claims).
       Because the TCCA’s conclusion does not fairly appear to rest primarily on
federal law and is not interwoven with federal law, it is independent of federal
law for purposes of applying procedural default doctrine. The correctness of the
district court’s procedural ruling concluding that his first five claims are
defaulted is therefore not subject to debate by reasonable jurists. As a result, we
will not issue a COA on these claims.
       Briefly, we note that the procedural bar to federal review may be lifted if
a petitioner can demonstrate cause for the procedural default in state court and
actual prejudice as a result of the alleged violation of federal law. Coleman, 501
U.S. at 750. On appeal, Gates suggests that the ineffective assistance of the
lawyer who filed his first state habeas petition should excuse his procedural
default. This argument is foreclosed by our precedent. E.g., Martinez v.
Johnson, 255 F.3d 229, 241 (5th Cir. 2001) (stating that “that ineffective
assistance of habeas counsel cannot provide cause for a procedural default”).
And contrary to what Gates may contend, the Supreme Court’s recent decisions
in Maples v. Thomas, 132 S. Ct. 912 (2012), and Martinez v. Ryan, No. 10-1001,
2012 WL 912950 (Mar. 20, 2012), do not provide a basis for finding that cause
exists in this case. Unlike the petitioner in Maples, Gates does not argue that
he was abandoned by state habeas counsel.1 In his written submissions, Gates
merely contends that the lawyer who filed his first state habeas petition was
ineffective. And, unlike the petitioner in Martinez, Gates was not denied the
opportunity under state law to raise his ineffective assistance of trial counsel


       1
          In Maples, the Supreme Court held that “principles of agency law and fundamental
fairness” pointed to the conclusion that there was cause to excuse a petitioner’s procedural
default where his attorneys of record abandoned him. See 132 S. Ct. at 927.

                                            10
  Case: 11-70023        Document: 00511891622           Page: 11     Date Filed: 06/19/2012



                                        No. 11-70023

claim on direct review.2 In Texas, a capital defendant can raise an ineffective
assistance of trial counsel claim on direct review to the Court of Criminal
Appeals. See, e.g., Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992)
(en banc) (considering an ineffective assistance of trial counsel claim on direct
review of a capital conviction). Thus, given these material distinctions, Maples
and Martinez do not alter the cause and prejudice analysis in this case.
                                               2.
       Before the district court, Gates’s sixth claim for relief alleged ineffective
assistance of trial counsel based on a failure to object to certain statements made
by the prosecution. Specifically, Gates contended that the prosecution made
statements in its closing argument that impermissibly commented on his failure
to testify. In relevant part, the prosecution argued the following:

       You heard James Jackson testify. You can decide if he learned all
       he did about this case—first of all, there isn’t any information that
       the defendant had any specific papers that detail the stuff. I guess
       the theory is going to be that James Jackson is so smart, so cunning,
       that he snuck into the defendant’s non-existent papers, memorized
       everything, slipped them back, and he’s just making up a big bunch
       of lies. You really think so? James Jackson is smart, he’s
       articulate, and the same age as the defendant. They both frequent
       the same part of town. Isn’t he the very type of person that this
       defendant would speak with about the crimes? If he doesn’t, how
       does he know so much about it? But again, you evaluate their


       2
            In Martinez, the Supreme Court held that “[w]here, under state law, claims of
ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding,
a procedural default will not bar a federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.” 2012 WL 912950, at *11. In its opinion,
the Court was careful to note that its ruling was limited to situations where the state bars a
defendant from raising an ineffective assistance of trial counsel claim on direct appeal. See
id. at 10 (“Our holding here addresses only the constitutional claims presented in this case,
where the State barred the defendant from raising the claims on direct appeal.”).



                                               11
  Case: 11-70023    Document: 00511891622     Page: 12    Date Filed: 06/19/2012



                                  No. 11-70023

      testimony in light of the other evidence. Five separate times this
      defendant’s DNA—and you could bet your bottom dollar it’s
      blood—is found mixed with Elfreda’s DNA. Why is he leaning on
      the wall above her body. Boy, sure didn’t come up with any kind of
      explanation for that.

      According to Gates, the last portion of the prosecution’s statement– “Boy,
sure didn’t come up with any kind of explanation for that”– impermissibly
commented on his failure to testify. His trial counsel’s failure to object to this
statement, he maintains, deprived him of his constitutional right to effective
trial representation.
      The district court rejected this argument.       Applying the deferential
standard of review mandated by the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), 28 U.S.C. § 2254(d), the district court examined the TCCA’s
rejection of this claim. In doing so, the district court noted that the TCCA “held
that the prosecutor’s comments did not impinge on Gates’ right to remain silent
because others could have explained the existence of the fingerprint[.]” After
discussing our precedent dealing with prosecutorial commentary on a
defendant’s failure to testify, the district court concluded that “the jury would
not [have] naturally and necessarily assume[d] that the prosecutor referred to
Gates’ failure to testify[.]” As a result, it determined that an objection to the
prosecutor’s statement would have been “meritless.” Because any objection
would have been meritless, the district court held that Gates’s trial counsel’s
failure to object did not constitute deficient performance under Strickland v.
Washington, 466 U.S. 668 (1984). Thus, the district court denied this claim
because it determined that Gates had “not shown that [the TCCA’s] adjudication
was contrary to, or an unreasonable application of, federal law.”
      In deciding whether to grant a COA on this issue, we must determine if
reasonable jurists would find the district court’s assessment of Gates’s sixth



                                       12
  Case: 11-70023     Document: 00511891622     Page: 13   Date Filed: 06/19/2012



                                  No. 11-70023

Strickland claim debatable or wrong. We conclude that jurists of reason would
not take issue with the district court’s assessment of this claim.
        “Strickland requires a defendant to establish deficient performance and
prejudice.” Knowles v. Mirzayance, 556 U.S. 111, 124 (2009) (citation omitted).
To establish deficient performance, “the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Strickland,
466 U.S. at 687-88. “A court considering a claim of ineffective assistance must
apply a ‘strong presumption’ that counsel’s representation was within the ‘wide
range’ of reasonable professional assistance.” Harrington v. Richter, 131 S. Ct.
770, 787 (2011) (quoting Strickland, 466 U.S. at 689). “The challenger’s burden
is to show that counsel made errors so serious that counsel was not functioning
as the counsel guaranteed the defendant by the Sixth Amendment.” Id. (internal
quotation marks and citations omitted).
        “Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 130 S. Ct. 1473, 1485 (2010). Under de novo review of a Strickland
claim, “the standard for judging counsel’s representation is a most deferential
one.”    Harrington, 131 S. Ct. at 788.      “Establishing that a state court’s
application of Strickland was unreasonable under § 2254(d) is all the more
difficult.” Id. “The standards created by Strickland and § 2254(d) are both
highly deferential, and when the two apply in tandem, review is doubly so.” Id.
(internal quotation marks and citations omitted). “When § 2254(d) applies, the
question is not whether counsel’s actions were reasonable.” Id. Rather, “[t]he
question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id.
        Here, a reasonable argument can be made that, despite counsel’s failure
to object to the challenged statement, Gates’s representation at trial was not
deficient under Strickland. As the district court made clear, any objection to this
statement would have been groundless. “Ordinarily, [t]he test for determining

                                        13
  Case: 11-70023    Document: 00511891622     Page: 14   Date Filed: 06/19/2012



                                 No. 11-70023

whether the prosecutor’s remarks were constitutionally impermissible is: (1)
whether the prosecutor’s manifest intent was to comment on the defendant’s
silence or (2) whether the character of the remark was such that the jury would
naturally and necessarily construe it as a comment on the defendant’s silence.”
United States v. Bohuchot, 625 F.3d 892, 901 (5th Cir. 2010) (internal quotation
marks and citation omitted). Because the challenged statement can be plausibly
read as an attempt to call attention to the state’s unrebutted evidence rather
than as an effort to comment on Gates’s failure to testify, there is no manifest
intent to comment on Gates’s silence. See id. (“The prosecutor’s intent is not
manifest if there is some other, equally plausible explanation for the remark.”).
In addition, when read in context, the prosecutor’s remark is not the type of
statement that a jury would naturally and necessarily interpret as a comment
on Gates’s failure to testify.   Instead, the more plausible reading of the
statement is that it aimed to highlight defense counsel’s general failure to
explain the presence of Gates’s fingerprints near Gans’s bathtub.
      Under circuit precedent, it is evident that the prosecution’s challenged
statement was not constitutionally impermissible. Thus, any objection to this
statement by defense counsel would have been unfounded. As a result, the
absence of an objection to the prosecutor’s comment did not place Gates’s
representation outside of the wide range of reasonable professional assistance.
This conclusion, combined with AEDPA’s deferential standard of review, leads
us to hold that reasonable jurists would not consider the district court’s
assessment of Gates’s sixth Strickland claim either wrong or debatable.
Accordingly, we refuse to issue a COA on this claim.
                                      III.
      For these reasons, we DENY Gates’s application for a COA.




                                       14
