     Case: 10-70028     Document: 00511540878         Page: 1     Date Filed: 07/14/2011




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

                                                                            FILED
                                                                           July 14, 2011

                                       No. 10-70028                        Lyle W. Cayce
                                                                                Clerk

DONALD KEITH NEWBURY,

                                                  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 Northern District of Texas
                             USDC No. 3:06-CV-1410


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Petitioner Donald Keith Newbury, convicted of capital murder and
sentenced to death in Texas state court, requests a Certificate of Appealability
(COA) so he may appeal the district court’s denial of his petition for a writ of
habeas corpus. We DENY his COA request because Newbury has not made a
substantial showing of the denial of a constitutional right or otherwise met the
qualifications for 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                              I
      A Texas jury convicted Newbury of capital murder and sentenced him to
death for his role in the shooting death of a City of Irving police officer. The
evidence presented at trial showed that Newbury and several fellow prison
inmates escaped from prison and committed a series of armed robberies.1 When
the group robbed a sporting goods store in Irving, a police officer encountered
them. As the group fled the crime scene, group members shot and killed the
officer. After the shooting, Newbury and others in the group escaped to Colorado
where law enforcement eventually arrested them.
      Newbury appealed his conviction and death sentence to the Texas Court
of Criminal Appeals, which affirmed the jury’s conviction and death sentence.
Newbury v. State, 135 S.W.3d 22 (Tex. Crim. App. 2004). Newbury filed a state
application for a writ of habeas corpus, which the Texas Court of Criminal
Appeals denied when that court adopted the trial judge’s findings and
conclusions. Ex Parte Newbury, No. WR-63822-01, 2006 WL 1545492 (Tex.
Crim. App. June 7, 2006). Newbury then filed a federal writ of habeas corpus,
which challenged his conviction and death sentence on four grounds. Before the
district court, Newbury argued that: 1) his counsel was constitutionally
ineffective because counsel failed to conduct an adequate investigation into his
background for mitigating evidence; 2) he was denied his constitutional rights
to effective assistance of counsel and due process because the trial court had
failed to strike two jury members who were exposed to pre-trial publicity; 3) the
Texas death penalty scheme, which does not require the State to prove the
absence of mitigating circumstances beyond a reasonable doubt, violated his
constitutional rights; and, 4) the Texas death penalty scheme violated his
constitutional rights because the State presented jury instructions that


      1
          The group of escaped prisoners was referred to as the Texas Seven.

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discussed Newbury’s future dangerousness through vague and undefined terms.
The district court denied Newbury’s petition and his application for a COA.
Newbury now requests a COA from this court.
                                         II
      Because Newbury filed his federal habeas petition after the effective date
of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), his
petition is governed by the procedures and standards provided therein. See Parr
v. Quarterman, 472 F.3d 245, 251–52 (5th Cir. 2006). AEDPA requires a
petitioner to obtain a COA to appeal a district court’s denial of habeas relief. 28
U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“[U]ntil
a COA has been issued federal courts of appeals lack jurisdiction to rule on the
merits of appeals from habeas petitioners.”).
      A COA will be granted only if the petitioner makes “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 327 (internal citations and quotations
omitted). “The question is the debatability of the underlying constitutional
claim, not the resolution of that debate.” Id. at 342. “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. “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.”
Johnson v. Quarterman, 483 F.3d 278, 285 (5th Cir. 2007) (citing Ramirez v.
Dretke, 398 F.3d 691, 694 (5th Cir. 2005)).



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      Because the district court reviewed the factual findings and legal
conclusions of a state court, the district court evaluated Newbury’s claims under
AEDPA’s deferential framework. A federal court cannot grant habeas relief on
any claim adjudicated on the merits by a state court unless the state court’s
adjudication “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court,” or “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)
(quoting 28 U.S.C.§ 2254(d)(1) and (2)). A state court’s decision is deemed
contrary to clearly established federal law if it reaches a legal conclusion in
direct conflict with a prior decision of the Supreme Court or if it reaches a
different   conclusion   than   the   Supreme    Court    based   on   materially
indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 404–08 (2000). A
state court’s decision constitutes an unreasonable application of clearly
established federal law if it is “objectively unreasonable.” Id. at 409; see also
Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Under § 2254(e)(1), the state
court’s findings of fact are presumed to be correct unless rebutted by clear and
convincing evidence. Wood v. Allen, 130 S. Ct. 841, 845 (2010).
                                       III
      Newbury requests a COA on four issues: 1) whether his trial counsel
rendered ineffective assistance by failing to investigate and present mitigating
evidence during the punishment phase of trial; 2) whether the district court
erred by concluding that Newbury was not denied effective assistance of counsel
in violation of his Sixth and Fourteenth Amendment rights when the trial court
denied Newbury’s challenge for cause to strike two prospective jurors; 3)
whether the Texas sentencing scheme unconstitutionally places the burden of
proof for mitigation on the criminal defendant; and, 4) whether the Texas death

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penalty scheme, which permits for a discussion of a defendant’s future
dangerousness in jury instructions, violated Newbury’s constitutional rights
under the Fifth, Sixth, Eighth, and Fourteenth Amendments.
                                        A
      Newbury contends that his trial counsel rendered ineffective assistance by
failing to investigate and present certain mitigating evidence during the
punishment phase of trial. In Newbury’s state habeas appeal, the state court
found that trial counsel’s performance did not violate Newbury’s Sixth
Amendment rights. In his federal habeas petition, the district court concluded
that a significant portion of Newbury’s federal claim on this matter exceeded the
scope of his claim at the state-court level. Thus, the district court determined
it was procedurally barred from considering the new allegations. The district
court also concluded that Newbury had failed to present clear and convincing
evidence that controverted the state court’s finding about his counsel’s
performance.
      To prevail on the merits of his claims in state court, Newbury had to
establish that counsel was ineffective under the standard established in
Strickland v. Washington, 466 U.S. 668 (1984). Newbury had to show that the
state court determinations–that counsel’s performance was not deficient and
that this representation had not prejudiced Newbury–were unreasonable. Id.
at 687. Courts give deference to strategic decisions made by counsel, applying
the strong presumption that counsel’s performance “falls within the wide range
of reasonable professional assistance.” Id. at 689. In doing so, a court evaluates
trial counsel’s conduct from counsel’s perspective at the time of trial,
endeavoring to “eliminate the distorting effects of hindsight.” Id. To overcome
the strong presumption that counsel acted reasonably, Newbury had to
demonstrate “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different.” Id. at 694.

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“Reasonable probability” is defined as “a probability sufficient to undermine
confidence in the outcome.” Id. Ultimately, the prejudice inquiry of Strickland
focuses on whether counsel’s deficient performance “renders the result of the
trial unreliable or fundamentally unfair.” Williams, 529 U.S. at 393 n.17. Unless
Newbury made both showings under Strickland—deficient performance and
prejudice—the district court could not conclude that his conviction or death
sentence “resulted from a breakdown in the adversary process that renders the
result unreliable.” Strickland, 466 U.S. at 687. When a petitioner argues that
his attorney failed to adequately investigate mitigation evidence, the proper
inquiry is “not whether counsel should have presented a mitigation case, . . .
[but] whether the investigation supporting counsel’s decision not to introduce
mitigating evidence of [the defendant's] background was itself reasonable.”
Wiggins v. Smith, 539 U.S. 510, 523 (2003).
      The second prong of Strickland requires a petitioner to show “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694. Inherent
within the prejudice requirement is an element of causation. “It is not enough
for the defendant to show that the errors had some conceivable effect on the
outcome of the proceeding. Virtually every act or omission of counsel would meet
that test, . . . and not every error that conceivably could have influenced the
outcome undermines the reliability of the result of the proceeding.” Id. at 693.
When deciding prejudice in the context of capital sentencing, the court must
“weigh the quality and quantity of the available mitigating evidence, including
that presented in post-conviction proceedings, along with . . . any aggravating
evidence.” Blanton v. Quarterman, 543 F.3d 230, 236 (5th Cir. 2008). The
question is then “whether the changes to the mitigation case would have a
reasonable probability of causing a juror to change his or her mind about
imposing the death penalty.” Id.

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       In his state petition for habeas corpus, Newbury argued that his trial
counsel rendered ineffective assistance by failing to uncover and introduce
elementary school records, medical records from his childhood physician, and
counseling records from 1974. In his federal habeas petition, Newbury argued
that his trial counsel had failed to investigate Newbury’s background “for
mitigation evidence, including but not limited to educational records, medical
records and social history.” Newbury concedes that the ineffective assistance of
counsel claim contained in his federal habeas petition is largely unexhausted
because it exceeds the scope of the claim presented in his state habeas petition.
Because of this, the district court concluded that Newbury’s new claims were
procedurally barred and that our precedent prevented consideration of these new
arguments.2 See Matchett v. Dretke, 380 F.3d 844, 849 (5th Cir. 2004); Haynes
v. Quarterman, 526 F.3d 189, 194–95 (5th Cir. 2008), rev’d on other grounds,
Thaler v. Haynes, 130 S. Ct. 1171 (2010). A reasonable jurist would not disagree
with the district court’s conclusion and as such, we deny Newbury a COA on the
ineffective assistance of counsel claims raised only in his federal habeas
petition.3
       At trial, Newbury’s counsel introduced evidence about his childhood
struggles at school and home with testimony from Newbury’s sister and father,
the only surviving adult members of the family in which Newbury was raised.


       2
          Although the district court concluded that Newbury’s new arguments were
procedurally barred, that court proceeded to analyze the new assertions. Ultimately, the
district court concluded that Newbury’s expanded ineffective assistance of counsel claim
lacked merit. We do not need to address the district court’s analysis because Newbury’s new
claims, supported by new factual evidence, are procedurally barred. Whitehead v. Johnson,
157 F.3d 384, 387 (5th Cir. 1998).
       3
          Newbury also contends that his state habeas counsel was ineffective because counsel
failed to present the expanded claim contained in his federal petition. Newbury argues this
purported ineffectiveness should constitute cause and overcome the procedural default. The
district court noted, and as Newbury has conceded, we have repeatedly rejected this argument.
See Williams v. Thaler, 602 F.3d 291, 308–09 (5th Cir. 2010); Matchett, 380 F.3d at 849 & n.1.

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Newbury’s sister testified about her brother’s tumultuous upbringing, his
abusive grandmother, his childhood learning disabilities, and how Newbury
dropped out of school when he was sixteen. Before the state habeas court,
Newbury argued that in addition to the testimony and evidence presented at
trial, counsel should have also investigated: 1) his childhood medical records
from Dr. William Legg; 2) school records reflecting Newbury’s performance
between kindergarten and third grade; and, 3) Newbury’s 1974 counseling
records from a mental health center in North Kansas City, Missouri. Newbury
argued that the records would have shown that he had suffered from learning
problems, low self-esteem, a medical condition that made him sensitive to
weather changes, a tendency to burst blood vessels during times of emotional
stress, and difficulties with his father. Newbury also asserts that if trial counsel
had discovered and introduced these records during trial, the jury would have
found sufficient mitigating circumstances existed to warrant a life imprisonment
sentence instead of death. Newbury compared his trial counsel’s failure to
obtain these records to three cases in which the Supreme Court held that
defense counsel had unreasonably failed to investigate and present potentially
mitigating evidence during capital trials. See Rompilla v. Beard, 545 U.S. 374
(2005); Wiggins v. Smith, 539 U.S. 510 (2003); Williams v. Taylor, 529 U.S. 362
(2000).
      In Williams, the Court determined that trial counsel's failure to present
mitigating evidence could not be justified as a strategic choice, because the
attorneys “did not fulfill their obligation to conduct a thorough investigation of
the defendant's background.” 529 U.S. at 396. Counsel in that case failed to
obtain records chronicling Williams’s “nightmarish childhood” because counsel
incorrectly believed that state law barred access to the records. Id. at 395.
Counsel also failed to seek prison records or obtain the testimony of prison
officials who described Williams as “least likely to act in a violent, dangerous or

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provocative way.” Id. at 396. In Wiggins, the Court determined that trial counsel
conducted an unreasonably limited investigation before deciding not to present
a mitigation case. 539 U.S. at 523–24. In that case, counsel consulted three
sources: a one-page pre-sentence investigation report prepared by the parole and
probation office, city social services records, and a psychologist who conducted
a number of tests on the petitioner, none of which revealed information about
Wiggins’s life history. Id. Because of this limited investigation, counsel failed
to uncover “evidence of severe physical and sexual abuse.” Id. at 516. In
Rompilla, the Court held that even when the defendant and his family members
suggest no mitigating evidence is available, his lawyer is bound to obtain and
review material that counsel knows the prosecution plans to rely on at
sentencing. 545 U.S. 374, 377. The Court found prejudice because a review of
Rompilla’s conviction file, “would have destroyed the benign conception of
Rompilla’s upbringing and mental capacity . . . formed from talking with
Rompilla himself and some of his family members” and alerted counsel that
further investigation was necessary. Id. at 391.
      In Newbury’s case, the district court concluded that trial counsel did not
perform ineffectively by failing to obtain records from Dr. Legg because the
records were destroyed when Dr. Legg retired in 1999. The district court
concluded that counsel’s failure to obtain the elementary school and counseling
records did not demonstrate a failure to spend sufficient time investigating
Newbury’s case. Furthermore, Newbury’s assertions do not demonstrate that
his counsel had blatantly ignored glaringly obvious leads or evidence. The
district court determined that this made Newbury’s counsel unlike the
constitutionally ineffective attorneys in Williams, Wiggins, and Rompilla.
      We agree with the district court’s assessment of counsel’s performance.
Newbury’s trial counsel presented a noteworthy mitigation case during the
punishment phase of trial. The mitigation evidence demonstrated, among other

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things, that: 1) Newbury’s father and mother were unsupportive of him and, at
times, abusive; 2) Newbury’s grandmother, who had an active role in Newbury’s
life, was abusive toward him; 3) Newbury had difficulty in school and dropped
out at age sixteen; 4) Newbury suffered from hyperactivity as a young child; and,
5) Newbury had close relationships with his sister, her children, his step-
children, and his wife. Based on the record, it appears that Newbury’s trial
counsel examined and presented to jurors Newbury’s family struggles,
difficulties in school, medical conditions, and educational background. Counsel
presented this information in an effort to present a sympathetic portrait of
Newbury. Thus, Newbury did not demonstrate how his counsel’s performance
is akin to the ineffective and damaging performance by counsel in Wiggins,
Williams, or Rompilla.4
       Furthermore, Newbury failed to demonstrate he was prejudiced by his
counsel’s performance because the State presented a strong, if not
overwhelming, case about Newbury’s future dangerousness.5 At trial, the State
showed that Newbury had three aggravated robbery convictions, the last of
which resulted in the 99-year prison sentence that he was serving when he
escaped from prison. As a fugitive, Newbury had a primary role in the three
robberies committed by the Texas Seven, which occurred prior to the killing of



       4
          Newbury’s petition before the district court argued that his trial counsel was
ineffective for failing to discover and present mitigating evidence contained in an affidavit by
a social worker as well as by failing to hire an expert who could recognize Newbury’s “various
emotional and psychological problems.” The district court’s opinion noted that Newbury had
not raised these claims before the state court. We will not consider these claims because they
were not raised before the state court and our review of Newbury’s petition under § 2254(d)(1)
is “limited to the record that was before the state court that adjudicated the claim on the
merits.” Pinholster, 131 S. Ct. at 1398.
       5
         Under Texas law, a defendant is eligible for the death penalty only if the jury
unanimously finds that “there is a probability that the defendant would commit criminal acts
of violence that would constitute a continuing threat to society.” TEX. CODE CRIM. PROC. art.
37.071, § 2(b)(1).

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the police officer. When police captured Newbury a month after the homicide,
he stated the officer’s death was due to poor police training. Prior to his escape
from prison with the Texas Seven, Newbury had previously made an
unsuccessful attempt to escape from prison and he had accrued a total of fifteen
disciplinary reports in prison. This evidence clearly demonstrated Newbury’s
propensity for violence.    Newbury has failed to demonstrate that, but for
counsel’s failure to proffer additional evidence from school and medical records,
the outcome of the trial would have differed. Reasonable jurists would not
debate the district court’s rejection of this claim.
                                         B
      Newbury also seeks a COA to appeal the district court’s failure to strike
two venire members that Newbury alleges were subject to removal because of
their exposure to pre-trial publicity. Both jurors stated that due to pre-trial
media reports, they knew about the facts of the homicide and the eventual arrest
of the Texas Seven. And, the individuals affirmed that they had not formed an
opinion regarding Newbury’s guilt and that they could presume Newbury
innocent until they had heard all of the evidence. Newbury’s trial counsel moved
to strike the two potential jurors for cause, but counsel did not use a peremptory
challenge. The trial court denied Newbury’s motion and the two individuals
served as jurors.
      The Sixth and Fourteenth Amendments “guarantee a defendant on trial
for his life the right to an impartial jury.” Ross v. Oklahoma, 487 U.S. 81, 85
(1988). A potential juror may be removed for cause if the individual’s views
prevent or “substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S.
412, 424 (1985) (internal quotation marks omitted). Exposure to media coverage
of the crime, however, does not automatically render a potential juror
unqualified. Mu’Min v. Virginia, 500 U.S. 415, 430 (1991). Rather, once a

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potential juror acknowledges such exposure, the issue “becomes whether
exposure to media publicity will preclude the individual from returning a verdict
based solely on the person’s application of the law as stated to the evidence
presented.” Bell v. Lynaugh, 828 F.2d 1085, 1093 (5th Cir. 1987); see also United
States v. Webster, 162 F.3d 308, 344 (5th Cir. 1998). Because a trial court’s
determination as to a potential juror’s bias is a factual determination to which
the district court pays special deference, a petitioner must rebut the
presumption of correctness afforded to the finding with clear and convincing
evidence. § 2254(e)(1); Patton v. Yount, 467 U.S. 1025, 1036–38 & n.12.
      In his state and federal habeas petitions, Newbury failed to rely on case
law when arguing that the trial court’s failure to strike two jurors for cause
violated his Sixth Amendment rights. Newbury conceded before the district
court that his petition did not provide an argument or case law to support the
Sixth Amendment claim. The district court concluded that Newbury waived the
claim because he had failed to properly preserve this issue. We have previously
held that a claim is waived when a petitioner inadequately briefs the issue. See
Trevino v. Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999); Pyles v. Johnson, 136
F.3d 986, 996 n.9 (5th Cir. 1998). On appeal, Newbury acknowledges the district
court’s conclusion and, again, fails to support this claim with case law. Newbury
has waived this claim due to the inadequate briefing of the issue. Trevino, 168
F.3d at 181 n.3. Thus Newbury, has failed to show that reasonable jurists would
debate the district court’s rejection of this claim.
      Newbury also alleges that the trial court’s refusal to strike the two
potential jurors violated his Fourteenth Amendment right to due process. But,
as the district court concluded, nothing in the record indicates that either juror
could not impartially judge Newbury’s guilt. Both of the contested jurors stated
that they could put aside what they had learned from media coverage and could
unequivocally afford Newbury the presumption of innocence. The district court

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concluded that the record supported the trial court’s conclusions that these
individuals were unbiased and truthful. Because Newbury failed to rebut the
presumption of correctness afforded to the trial court’s factual finding, the
district court concluded that the state court had not violated Newbury’s due
process rights.      The record supports the district court’s conclusion and
reasonable jurists could not debate this finding. Therefore, we DENY Newbury’s
request for a COA on this claim.6
                                             C
       Newbury argues that we should grant his request for a COA because the
Texas death penalty scheme, which does not require the prosecution to prove the
absence of sufficient mitigating circumstances beyond a reasonable doubt,
violates his Fifth, Sixth, Eighth, and Fourteenth Amendment rights.
Specifically, Newbury argues that under Ring v. Arizona, 536 U.S. 584 (2002)
and Apprendi v. New Jersey, 530 U.S. 466 (2000), the State should bear the
burden of proving beyond a reasonable doubt that there were not sufficient
mitigating circumstances to warrant the imposition of a life sentence rather than
a death sentence. The district court correctly concluded that this claim was
foreclosed by our precedent. See Ortiz v. Quarterman, 504 F.3d 492, 505 (5th
Cir. 2007); Granados v. Quarterman, 455 F.3d 529, 536–37 (5th Cir. 2006).
Furthermore, Newbury concedes that we have previously considered and
rejected this issue on several occasions. Thus, the district court’s denial of this
claim is not debatable among reasonable jurists.
                                             D
       In his final claim, Newbury alleges that his Fifth, Sixth, Eighth, and
Fourteenth Amendment rights were violated because the Texas death penalty
scheme permits for jury instructions that contain vague and undefined terms.

       6
       While we do not address the question of whether the district court erred by concluding
that Newbury properly preserved this claim, the State preserved its argument on this issue.

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Specifically, Newbury contests the instruction that required jurors to answer
whether they had found “beyond a reasonable doubt that there [was] a
probability that the defendant, Donald Keith Newbury, would commit criminal
acts of violence that would constitute a continuing threat to society.” Newbury
argues that the terms “probability,” “criminal acts of violence,” and “continuing
threat to society” were vague and undefined.        The district court properly
concluded that we have consistently held that these terms are not
unconstitutionally vague and that their meanings may be readily understood.
See Leal v. Dretke, 428 F.3d 543, 553 (5th Cir. 2005); Turner v. Quarterman, 481
F.3d 292, 299–300 (5th Cir. 2007). In his petition before the district court and
the present appeal, Newbury also concedes that we have rejected similar
challenges and states that he raised this issue to preserve it for further review.
The district court’s denial of the claim is not debatable.
                                       IV
      Newbury has not made a substantial showing that his constitutional
rights were denied. We therefore DENY his request for a COA.




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