                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                      F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       September 27, 2004

                                                                 Charles R. Fulbruge III
                          _______________________                        Clerk

                                NO. 02-60385
                          _______________________


                            JOHN B. NIXON, SR.,

                                                       Petitioner-Appellant,

                                   versus


                 CHRISTOPHER B. EPPS, COMMISSIONER,
               MISSISSIPPI DEPARTMENT OF CORRECTIONS,

                                                       Respondent-Appellee.



            Appeal from the United States District Court
              for the Southern District of Mississippi
                          3:95-CV-91(Br)(S)



Before JONES, SMITH and BENAVIDES, Circuit Judges.

PER CURIAM:*

            This habeas appeal arises out of the January 1985 murder

of Virginia Tucker.       John B. Nixon, Sr. was convicted of capital

murder by a Rankin County, Mississippi jury after a three-day

trial.    In the penalty phase of the trial the jury returned a death

penalty verdict and found that the capital offense was committed

for   pecuniary   gain,    that   the   murder   was    especially    heinous,



      *
            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opinion should not be published and is not precedent except under the limited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.
atrocious and cruel, and that the defendant had previously been

convicted of a felony involving the use or threat of violence to a

person.     The conviction was affirmed on direct appeal by the

Mississippi Supreme Court.       Nixon v. State, 533 So. 2d 1078 (Miss.

1987). Certiorari was denied by the United States Supreme Court in

1989.     Nixon v. Mississippi, 492 U.S. 932, 110 S. Ct. 13, 106

L. Ed. 2d 628 (1989).     Nixon exhausted his state post-conviction

remedies.    Nixon v. State, 641 So. 2d 751 (Miss. 1994), cert.

denied, Nixon v. Mississippi, 513 U.S. 1120, 115 S. Ct. 922, 130

L. Ed. 2d 802 (1995).     Nixon then filed a federal petition for a

writ of habeas corpus.     The district court, in a series of three

decisions between 1998 and 2002, denied habeas relief.        The case

comes to this court on appeal from the district court’s grant of a

certificate of appealability (COA) on Nixon’s claim of ineffective

assistance of counsel and on Nixon’s motion to this court for a COA

on ten other grounds.

            For the reasons that follow, we deny COA on most of the

issues sought by petitioner, but grant COA and deny relief on his

Batson/Powers claim.      We grant COA on his claim regarding the

introduction of a prior violent felony conviction before the jury

as an aggravator.    We defer ruling on the ineffective assistance

claim pending briefing.

                            I.    BACKGROUND




                                     2
          On January 22, 1985, Nixon and two other individuals

arrived at the home of Thomas and Virginia Tucker.         Upon entering

the house, Nixon pulled out a .22 caliber pistol and said, “I

brought y’all something.” Mr. Tucker, who had married his wife six

months earlier (a scant three months after her prior divorce was

finalized),   immediately   surmised   that   men   had   been   hired   by

Mrs. Tucker’s former husband, Elster Joseph Ponthieux.             Tucker

offered Nixon money to spare their lives, but Ponthieux replied

“[t]hat’s not what I’m after.         The deal’s already been made.”

Nixon and one of his associates then shot at Tucker, who managed to

escape despite being hit in the side.      Tucker made his way to his

nearby place of work and asked a co-worker to check on his wife.

Meanwhile, Nixon took the gun back from his associate, held the gun

one inch behind Mrs. Tucker’s ear and fired a shot into her head.

Nixon and his associates fled.    Mrs. Tucker was soon discovered by

Tucker’s co-worker and was taken to the hospital, where she died

the next day.    Nixon was arrested after being identified in a

lineup by Mr. Tucker.

          At trial, as noted above, Nixon was convicted of capital

murder and sentenced to death.    Following completion of his direct

appeal and state post-conviction proceedings, Nixon filed a federal

habeas petition that was denied by the district court.               This

application for a COA followed.




                                  3
                          II.   DISCUSSION

          Nixon has briefed ten separate grounds upon which he

argues a COA should issue, and the state has responded.     We first

set forth the applicable standards of review and then turn to the

issues he has raised.

A.   Standard of Review

          Nixon filed his original federal habeas petition in the

district court on May 24, 1995.       Because the petition was filed

before the effective date of the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), pre-AEDPA standards apply to the

district court’s review of the petition as well as to our review of

the petition.   See Lindh v. Murphy, 521 U.S. 320, 326-27, 117

S. Ct. 2059, 2063, 138 L. Ed. 2d 481 (1997); see also Slack v.

McDaniel, 529 U.S. 473, 481, 120 S. Ct. 1595, 1602, 146 L. Ed. 2d

542 (2000) (noting that “Lindh requires a court of appeals to apply

pre-AEDPA law in reviewing the trial court’s ruling, for cases

commenced there pre-AEDPA”).    However, because Nixon’s notice of

appeal was filed in this court on January 14, 2003, the post-AEDPA

version of 28 U.S.C. § 2253 — the statute governing appeals of

habeas petitions — sets forth the appropriate standard for this

court to apply in determining whether Nixon has a right to appeal.

Slack, 529 U.S. at 481, 120 S. Ct. at 1602.

          Part of Nixon’s appeal remains pending before this court

following the district court’s grant of a COA on one issue.       In


                                  4
this portion, however, we must decide whether to expand the COA

grant after the district court refused it on the other issues.             In

making the threshold inquiry into whether a COA should issue, the

Supreme Court reminds us, AEDPA bars the courts of appeals from

undertaking “full consideration of the factual or legal basis

adduced in support of the claims.” Miller-El v. Cockrell, 537 U.S.

322, 336, 123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931 (2003).          Rather,

we must be careful to undertake only “an overview of the claims in

the habeas petition and [make] a general assessment of their

merits.”    Miller-El, 537 U.S. at 336, 123 S. Ct. at 1039.

            A COA should issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2) (2000 & Supp. 2003).              This standard is

satisfied when the applicant demonstrates that “jurists of reason

could   disagree   with   the   district   court’s     resolution   of    his

constitutional claims or that jurists could conclude that the

issues presented are adequate to deserve encouragement to proceed

further.”    Miller-El, 537 U.S. at 327, 123 S. Ct. at 1034.         We may

not, however, deny a COA merely because we believe “that the

applicant will not demonstrate an entitlement to relief.”           Id. at

337, 123 S. Ct. at 1039.      Moreover, “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, 123 S. Ct. at 1040.

Therefore, where the death penalty is at issue, “any doubt as to

                                      5
whether a COA should issue must be resolved in [the petitioner’s]

favor.”    Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).

            In evaluating the district court’s resolution on the

merits of issues presented to it, we review the district court’s

findings of fact for clear error and its conclusions of law de

novo.     Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001).   We

review its determination of a procedural bar de novo.    Johnson v.

Puckett, 176 F.3d 809, 814 (5th Cir. 1999).

B.   Procedural Bars

            Nixon first argues that a COA should issue because the

district court improperly found that the following claims were

procedurally barred: (1) that the prosecution improperly dis-

criminated on the basis of race in using its peremptory strikes

during voir dire in violation of Batson v. Kentucky, 476 U.S. 79,

106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), (2) that the evidence of

Mr. Tucker’s identification of Nixon during the lineup and at trial

was improper because it was derived from impermissibly suggestive

and unreliable procedures, and (3) that the prosecution improperly

withheld exculpatory evidence in violation of Brady v. Maryland,

373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).     The state

argues that while the district court held these claims to be

procedurally barred, it also addressed each claim on the merits in

the alternative and as such, the COA should not issue because

jurists of reason cannot dispute the district court’s resolution of



                                  6
the merits issues.        Because each of these issues appears in a

distinct procedural context, we will examine them along with any

appropriate merits discussion.

             The general principles of procedural default may be

quickly repeated.        A federal court may not grant habeas relief

where the last state court to consider the claim raised by the

petitioner expressly and unambiguously based its denial of relief

on   an    independent   and   adequate     state   law   procedural   ground.

Henderson v. Cockrell, 333 F.3d 592, 604 (5th Cir. 2003), cert.

denied, Henderson v. Dretke, 124 S. Ct. 1170, 157 L. Ed. 2d 1208

(2004).      A state procedural rule is independent if it does not

“depend[] on a federal constitutional ruling,”                Ake v. Oklahoma,

470 U.S. 68, 75, 105 S. Ct. 1087, 1092, 84 L. Ed. 2d 53 (1985), and

it is adequate if firmly established and regularly and consistently

applied by the state court.        Henderson, 333 F.3d at 604.         Where a

state court finds procedural default on the basis of an independent

and adequate state ground, absent a showing of cause and actual

prejudice, a federal habeas petitioner may not obtain relief. Id.

(citing Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546,

2565, 115 L. Ed. 2d 640 (1991)).

C.   Batson Claim

      1.     Procedural Default on the Batson/Powers Claim

             The   district    court   considered    itself    precluded   from

reviewing several of Nixon’s claims, including his Batson/Powers


                                        7
claim, because the state courts had determined that Nixon failed to

raise the claim properly during the state court proceedings.                 The

state concedes, however, that the district court misinterpreted the

Mississippi      Supreme    Court’s   ruling   concerning    this    claim   on

collateral review, see Nixon, 641 So. 2d at 753-56, and a COA would

be proper if the federal court’s discussion had stopped there.

Because the federal court went on to resolve this claim on the

merits, correctly, in the state’s view, the state concludes that no

COA is required.       In a cautious approach to the Supreme Court’s

decision in Miller-El, supra, we grant COA but hold that Nixon’s

claim cannot prevail.

       2.     Batson, Powers and Teague Non-Retroactivity

              Nixon argues that the exclusion of all African-Americans

from his jury violated the Fourteenth Amendment under Batson and

Powers.     On direct appeal, the Mississippi Supreme Court held that

as a white male, Nixon lacked standing to raise a Batson challenge

based on the exclusion of jurors of a different race.               Nixon, 533

So. 2d at 1086.     Two years after Nixon’s cert. petition was denied,

however, the Supreme Court held that a white male could challenge

the discriminatory use of peremptory challenges.            Powers, 499 U.S.

at 416.       On post-conviction review, the state supreme court held

that    the    non-retroactivity      principle   of   Teague   barred       the

application of Powers and that Nixon could not obtain any relief on

his Batson claim.          Nixon, 641 So. 2d. at 753-55.        The federal



                                       8
district court agreed with the Mississippi Supreme Court and held

that Powers was not retroactively applicable.

          To begin with, Batson itself is not retroactive to claims

pending on collateral review.   Allen v. Hardy,   478 U.S. 255, 261,

106 S. Ct. 2878, 2881, 92 L. Ed. 2d 199 (1986) (per curiam) (“Our

weighing of the pertinent criteria compels the conclusion that the

rule in Batson should not be available to petitioner on federal

habeas corpus review of his convictions.”).       While some of the

logic underlying Allen has since been repudiated by the Supreme

Court, the case nonetheless remains good law.       See Procter v.

Butler, 831 F.2d 1251, 1254 n.4 (5th Cir. 1987) (noting that while

the Supreme Court’s holding in Griffith v. Kentucky, 479 U.S. 314,

107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) that Batson applies to

cases still pending on direct appeal “casts some doubt on the

continued validity of Allen's reasoning,” the Court “limited its

holding to cases still on direct appeal, and avoided any suggestion

that Allen's holding — concerning cases on collateral review —

should be changed”).   Since Nixon’s case became final on direct

appeal following Batson, Batson applies to his claim.        United

States v. Robinson, 367 F.3d 278 (5th Cir. 2004) (citing Griffith,

479 U.S. at 322, 107 S. Ct. at 712).

          The determinative question in this case, and res nova in

this court, is whether Powers sets forth a “new rule” that is not

retroactively applicable under Teague.   As the state notes, every

other circuit court to have directly addressed this issue has held

                                 9
that Powers is not retroactively applicable to claims on collateral

review.   See, e.g., Nguyen v. Reynolds, 131 F.3d 1340, 1351-52

(10th Cir. 1997); Jones v. Gomez, 66 F.3d 199, 202-04 (9th Cir.

1995); Van Daalwyk v. United States, 21 F.3d 179, 180-83 (7th Cir.

1994); Farrell v. Davis, 3 F.3d 370, 371-72 (11th Cir. 1993);

Echlin v. LeCureux, 995 F.2d 1344, 1349-51 (6th Cir. 1993).       Nixon

agrees and cites no cases to the contrary, but he nonetheless

argues that Powers does not constitute a new rule under Teague.

Based on the strong consensus, not only of federal circuit courts

but also of state supreme courts, that Powers is nonretroactive on

collateral review, we disagree.    See Brown v. State, 798 So.2d 481,

505-06, ¶ 66 (Miss. 2001); Brewer v. State, 819 So.2d 1165,

1167-68, ¶¶ 13-14 (Miss. 2000); Holland v. State, 705 So.2d 307,

327-29, ¶¶ 45-47, 53-55 (Miss. 1997); King v. State, 656 So.2d

1168, 1174-78 (Miss. 1995); Fleming v. State, 604 So.2d 280, 294

(Miss. 1992). Nixon’s citation of a footnote in J.E.B. v. Alabama,

511 U.S. 127, 141 n.12, 114 S. Ct. 1419, 1427 n.12, 128 L. Ed. 2d

89 (1994), which suggests doctrinal “compulsion” behind the Court’s

prohibition   of   sex-based   peremptory   strikes,   also   fails   to

persuade. J.E.B. followed Powers and Batson as a logical corollary

of those cases’ holdings that race-based peremptory strikes violate

the Equal Protection Clause.      The J.E.B. footnote expresses no

opinion on, and certainly does not reach, the separate question

whether it was “doctrinally compelled,” and therefore not a “new

rule,” to hold that a defendant from one race or sex can challenge

                                  10
discrimination in jury selection against members of another race or

gender.     Nixon’s Batson/Powers claim fails on the merits.

D.    Improper Identification Claim

            In his pre-trial motion to suppress, Nixon asserted that

Mr. Tucker’s identification of him was the product of an unduly

suggestive lineup.      The motion was eventually withdrawn by Nixon’s

trial counsel and the issue was not raised at trial.                 On direct

appeal, the Mississippi Supreme Court noted that no objection was

made at trial on this issue, and therefore, the claim may not have

been cognizable on appeal, Nixon, 533 So. 2d at 1086-87, but the

court proceeded to consider and reject Nixon’s identification claim

on the merits.     Id. On state post-conviction review, the identifi-

cation claim was not addressed by the court, but was dismissed as

procedurally barred.         Nixon, 641 So. 2d at 756 (“A published

analysis of the remaining issues is unwarranted because Nixon has

waived his right to raise them at this time.”).1

            It is unclear whether, in stating that this claim is

procedurally barred from federal review, the district court relied

upon the Mississippi Supreme Court’s ruling on direct appeal or on

post-conviction review.        In any event, because the district court

also discussed this claim in detail and rejected it on the merits,

we   need   not   decide   the   correctness     of   the   district    court’s


      1
            The court based its procedural bar ruling on two bars available under
Mississippi’s post-conviction review scheme: (1) failure to raise a claim on
direct appeal and (2) res judicata where a claim was raised and disposed of on
the merits on direct appeal. See Nixon, 641 So. 2d at 756 n.8.

                                       11
procedural bar analysis.         More than that, we may not decide the

merits of the identification claim either, for, unlike his Batson

claim, Nixon has not requested a COA on the district court’s ruling

on the merits.       Nor does Nixon brief or argue any substantive

challenge to the district court’s merits ruling on the identifi-

cation claim in this court.        As a result, Nixon has abandoned any

argument that the district court’s resolution of the merits claim

is debatable among jurists of reason.              See Foster, 293 F.3d. 766

784 (5th Cir. 2002) (unbriefed claims are abandoned).               Even if we

granted a COA on the procedural default question, our decision

would   not    provide   Nixon   with    any   relief   because     the   merits

determination by the district court must stand.                 See Slack, 529

U.S. at 484-85 (where a procedural ruling is at issue, § 2253

requires a petitioner to show debatable issues concerning both the

denial of a constitutional right and error in a district court’s

procedural ruling before a court of appeals may grant a COA and

consider the appeal).       Thus, we decline to grant the COA on the

district      court’s    procedural      default     ruling     regarding    the

identification claim and we will not issue a COA on the merits of

the claim.

E.   Brady Claim

              When the Brady claim was first raised by Nixon on post-

conviction review, the Mississippi Supreme Court held the claim

procedurally barred.      Nixon, 641 So. 2d at 756.           Because the Brady



                                        12
claim was not raised at trial or on direct appeal or discussed on

its merits, it is apparent that the Mississippi court relied solely

on the failure to raise bar.       This bar constitutes an independent

state ground for rejecting a habeas petitioner’s claim in federal

court. See Puckett, 176 F.3d at 823-24 (discussing the application

of MISS. CODE ANN. § 99-39-21(1) to the petitioner’s Batson claim);

see also Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997)

(holding that “§ 99-39-21(1) does contain an independent state

procedural bar”).

           The next question is whether the failure to raise bar is

adequate as applied to Brady claims.          As the state notes, “[w]e

presume the adequacy and independence of a state procedural rule

when the state court expressly relies on it in deciding not to

review a claim for collateral relief.”           Sones v. Hargett, 61 F.3d

410, 416 (5th Cir. 1995).     Further, the petitioner bears the burden

of demonstrating the inadequacy of a state procedural rule and must

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

claims similar to those he raises.        Stokes, 123 F.3d at 860.     While

Nixon   cites   no   cases   indicating   that    Mississippi   has   failed

regularly to apply the procedural bar contained in § 99-39-21(1) to

Brady-type claims, and therefore appears unable to carry his burden




                                    13
in this regard, we are reluctant to foreclose the issue altogether

because the cases cited by the state are less than compelling.2

            As a prudential matter, we shall assume arguendo that the

state procedural bar applied to this claim was independent and

adequate, and move on to Nixon’s contention that his claim is

reviewable based upon a showing of cause and actual prejudice.

Henderson, 333 F.3d at 604 (citing Coleman, 501 U.S. at 750, 111

S. Ct. at 2565).     We need not consider his allegation of cause for

his procedural default, however, as Nixon cannot show actual

prejudice from the alleged Brady violation.

            In order to succeed on a Brady claim, a defendant must

show that (1) the state withheld evidence, (2) the evidence is

favorable to the accused, and (3) the evidence is material to guilt

or punishment.      DiLosa v. Cain, 279 F.3d 259, 262-63 (5th Cir.

2002) (citing United States v. Bagley, 473 U.S. 667, 674, 105

S. Ct. 3375, 3379, 87 L. Ed. 2d 481 (1985)).            Evidence is material



      2
            The cases cited by the state for the proposition that the Mississippi
Supreme Court has consistently applied the failure to raise bar to Brady claims
do not clearly stand for that proposition.         Indeed, at least one recent
Mississippi Supreme Court case appears to indicate that the Mississippi court is
not necessarily strict and consistent in its application of this bar in Brady
cases. See Simon v. State, 857 So. 2d 668, 679 (Miss. 2003) cert. denied by
Simon v. Mississippi, 124 S. Ct. 1885 (2004) (refusing to impose the failure to
raise procedural bar where a petitioner claimed he did not have access to the
Brady materials at the time of his direct appeal). In addition, the state’s
citation to Johnson v. Puckett, 176 F.3d 809 (5th Cir. 1999), for the proposition
that the failure to raise bar is adequate as applied to Brady claims is
incorrect. Johnson considered a Brady claim that the petitioner conceded was
barred and discussed only whether the petitioner had established cause and
prejudice. See Johnson, 176 F.3d at 815-16. The Johnson court’s holding that
the application of Mississippi’s failure to raise bar constituted an independent
and adequate state ground for precluding federal habeas relief pertained only to
a Batson claim. Id. at 823-24.

                                       14
under Brady “if there is a reasonable probability that, had the

evidence   been    disclosed   to   the    defense,   the    result   of   the

proceeding would have been different.”          Bagley, 473 U.S. at 682.

The   evidence    proffered    by   Nixon    was   neither    material     nor

prejudicial.

           Nixon alleges that Wade Carpenter, the man who sold the

gun that was used to murder Mrs. Tucker, was shown a picture of an

individual that the police believed to be the murderer and that

Carpenter said he did not sell the gun to the individual in the

photograph. This much of Nixon’s claim is supported by Carpenter’s

affidavit.       However,   Nixon   also    claims,   with   no   evidentiary

support, that Nixon’s photo was the one shown to Carpenter.            As the

district court noted in its opinion, nothing in Carpenter’s affi-

davit even suggests that Nixon was the man in the picture.                  In

addition, given that one of Nixon’s co-conspirators testified at

trial that Nixon was the triggerman who killed Mrs. Tucker, any

benefit that Nixon would have gained from Carpenter’s statement,

even if he was actually referring to a photo of Nixon, is illusory

at best.     Identification of Nixon as the culprit was not a

significant issue at trial.         Carpenter’s statement was neither

material under Brady nor did Nixon suffer actual prejudice as a

result of its being withheld.

           For these reasons, we pretermit the decision whether to

grant a COA on the district court’s ruling that Nixon procedurally

defaulted his Brady claim. And, because we agree with the district

                                     15
court that Nixon cannot demonstrate that the allegedly withheld

information was material or prejudicial under Brady, we decline to

grant a COA on the merits of the claim.

F.    Improper Jury Instructions Claim

              Nixon   asserts     that   the   jury   instructions    improperly

emphasized the requirement of unanimity with regard to mitigating

circumstances.        The parties dispute whether this claim was raised

on   direct    appeal.      The    state      court   held   this   claim   to   be

procedurally barred on post-conviction review.                Nixon, 641 So. 2d

at 756.   The federal district court held that the claim was pro-

cedurally barred because the claim had not been raised on direct

appeal and, in the alternative, that the claim had no merit.

              Nixon now argues that it is debatable among reasonable

jurists that the district court erred in its procedural bar ruling

because his claim was actually raised on direct appeal in an

Amendment to Petition for Rehearing.              He cites Hathorn v. Levon,

457 U.S. 255, 102 S. Ct. 2421, 2424, 72 L. Ed. 2d 824 (1982), for

the proposition that new claims raised in rehearing petitions

before the Mississippi Supreme Court may be considered by the

federal courts.        In this case, as in Hathorn, the petition for

rehearing was denied by the Mississippi Supreme Court without a

published opinion.        Hathorn, 457 U.S. at 259, 102 S. Ct. at 2424.

In Hathorn, the Supreme Court held that the Mississippi Supreme

Court’s denial of rehearing without opinion did not constitute the



                                         16
application of an “adequate” state procedural bar because the Court

found it “difficult to know whether the Mississippi Supreme Court

still adheres to the rule [barring review of questions raised for

the first time on rehearing], applying it silently, or whether the

court has abandoned the rule.”         Id. at 263.       The state essentially

argues that Hathorn is no longer good law because since Hathorn,

the Mississippi Supreme Court has repeatedly held that it will not

consider arguments raised for the first time on rehearing.

            We need not address the question of Hathorn’s continued

validity on this issue, however, because Hathorn is inapplicable to

this case.      Here, the procedural bar was not applied “silently”

because, unlike in Hathorn, the denial of rehearing was not the

final ruling of the state courts on this issue.               Rather, on post-

conviction review, the Mississippi Supreme Court held the claim to

be procedurally barred.        Nixon, 641 So. 2d at 756.          In his brief

before this court, Nixon does not argue that the Mississippi

procedural bars are inadequate as applied to his jury instruction

claim,   nor    does   he   argue   that    he   can    demonstrate   cause   and

prejudice      sufficiently    to   overcome      the     application   of    any

procedural bar on this issue.        Nixon’s argument against procedural

bar has no debatable merit.            Since no jurist of reason could

disagree with the district court’s ruling that the jury instruction




                                       17
claim is procedurally barred, we decline to grant a COA on this

claim.3

G.    Surprise Testimony Claim

            Nixon contends that the prosecution violated his right to

due process because it did not notify him prior to trial that

Mr. Tucker and Jimenez, a co-conspirator, would testify that, in

the course of committing the crime, Nixon told Mr. Tucker that “the

deal’s already been made.”        The non-disclosure of this statement,

Nixon argues, violated the state’s pretrial representation to Nixon

and prejudiced his defense, which had been predicated on the

state’s inability to support capital murder charges based on a

murder-for-hire theory.

            Nixon’s    surprise    testimony    claim     before   this   court

parallels his assertion before the state courts that the state had

violated Mississippi discovery rules.            See Nixon, 533 So. 2d at

1088-91.    The Mississippi Supreme Court held, on direct appeal,

that the trial court had followed the proper guidelines under state

law to address any discovery violations underlying the contested

testimony and that at least some of the statements did not fall

within the relevant state discovery rule.           Id.   The district court


      3
            Even if we considered the merits of Nixon’s jury instruction claim,
we would hold that the district court’s alternative resolution of the claim on
the merits is undebatable. The jury instructions given by the state trial court
did not improperly suggest that the jury needed to find mitigating circumstances
unanimously to avoid imposition of the death penalty. To the contrary, the jury
instructions made clear that the jury was not required to find “any mitigating
circumstances in order to return a sentence of life imprisonment.” Thus, even
if we were to grant the COA on Nixon’s procedural claim, it would be unavailing
to him because he would not be entitled to any relief on the merits.

                                      18
reviewed the substance of this claim and found that it had no

merit.

              As Nixon evidently recognizes, a claim that state law has

been violated is generally not cognizable on federal habeas.

Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475,479-80, 116

L. Ed. 2d 385 (1991).        He has attempted to recast his state claim

as    a   federal     constitutional      claim      by    citation      to   Brady.

Unfortunately for Nixon, this effort is unavailing. The ostensibly

withheld      information   was    neither     exculpatory        nor    useful   for

impeachment purposes, as Brady requires.                  Nixon claims only that

his   trial    team   was   surprised     by   the   use    of    this   powerfully

inculpatory     testimony.        Such   testimony,        when   not    useful   for

impeachment purposes, simply does not fall within the ambit of

Brady and its progeny.       See Strickler v. Greene, 527 U.S. 263, 280,

119 S. Ct. 1936, 1947, 144 L. Ed. 2d 286 (1999) (noting that the

Brady obligation applies to “impeachment evidence as well as

exculpatory evidence”).4

              More importantly, we agree with the district court that

Nixon cannot demonstrate any prejudice arising from the allegedly

improper withholding of this information.                  Jimenez made a post-

arrest statement to the police, which was provided to the defense

during discovery and clearly implicated Nixon in a murder-for-hire

plot.     Thus, the defense was on notice that such testimony would


      4
            To hold otherwise would be creating an impermissible “new rule” of
constitutional procedure. See Gray v. Netherland, 518 U.S. 152, 166-70 (1996).

                                         19
likely be presented at trial.          The notion that the additional

testimony regarding the “deal” so prejudiced the defense as to rise

to the level of a due process violation is untenable.

           Jurists of reason cannot disagree with the district

court’s analysis of this issue, and we decline to grant a COA.

H.    “Especially Heinous, Atrocious or Cruel” Aggravator

           Nixon argues that the use of the “especially heinous,

atrocious or cruel” aggravator violated his constitutional rights

because it is unconstitutionally vague and did not properly narrow

the class of individuals who are death-eligible.             The state court

denied this claim on the merits on direct appeal.                Nixon, 533 So.

2d at 1097-98.    In Maynard v. Cartwright, 486 U.S. 356, 108 S. Ct.

1853, 100 L. Ed. 2d 372 (1988), the Supreme Court held that such an

aggravator   is   unconstitutionally      vague    unless        an   appropriate

limiting   instruction     is   provided.        Id.   at   364.        The   jury

instruction provided at Nixon’s trial defined a capital offense to

be “especially heinous, atrocious or cruel,” where the offense is

“a   conscienceless   or    pitiless     crime    which     is    unnecessarily

torturous to the victim.”         This language was borrowed by the

Mississippi Supreme Court from a Fifth Circuit opinion.                       See

Clemons v. State,     535 So. 2d 1354, 1363 (Miss. 1988) (quoting

Spinkellink v. Wainwright, 578 F.2d 582, 611 (5th Cir. 1978)).                The

Fifth Circuit, in turn, quoted a Florida Supreme Court opinion.

See State v. Dixon, 283 So.2d 1, 9 (Fla. 1973) (internal citation



                                    20
omitted).      The Mississippi Supreme Court quoted the following

language from these cases:

     What is intended to be included are those capital crimes
     where the actual commission of the capital felony was
     accompanied by such additional acts as to set the crime
     apart from the norm of capital felonies — the
     conscienceless or pitiless crime which is unnecessarily
     torturous to the victim.

Clemons, 535 So.2d at 1363 (internal quotation marks and citations

omitted).    The United States Supreme Court has at least implicitly

endorsed    the   limiting      instruction     adopted    by   the     Mississippi

Supreme Court, referring to it as “the proper limiting construction

of the ‘especially heinous’ aggravating factor.”                        Clemons v.

Mississippi,      494   U.S.    738,   751,    110   S.   Ct.   1441,    1449,   108

L. Ed. 2d 725 (1990) (emphasis added).               In doing so, the Supreme

Court cited the page from the Mississippi Supreme Court’s opinion

in Clemons that contains the above quotation. Id. (citing Clemons,

535 So. 2d at 1363).           Earlier in Clemons, the Court recited the

Mississippi Supreme Court’s narrowing language to include “murders

that are conscienceless or pitiless and unnecessarily torturous to

the victim . . . .”       494 U.S. at 744, 110 S. Ct. at 1446 (internal

quotations and citations omitted).

            Notwithstanding        this    reasonably      clear      guidance    in

Clemons, Nixon contends that the Supreme Court really meant to

require in the narrowing construction that “the actual commission

of the capital felony [must be] accompanied by such additional acts

as to set the crime apart from the norm of capital felonies.”                    We


                                          21
cannot accept Nixon’s position as reasonably debatable for two

reasons.     First, the Supreme Court in Clemons never expressly

refers to the language on which he relies.             Second, as the district

court noted, a capital case jury can hardly be expected to know

what facts set apart the case before them from “the norm of capital

felonies.”       Such language would improperly invite speculation and

references to wholly extraneous events.

            Finally, as we noted in Billiot v. Puckett, 135 F.3d 311

(5th Cir. 1998), “a federal habeas court may not grant relief

unless     the    petitioner    demonstrates        that    the   error    ‘had     a

substantial and injurious effect or influence in determining the

jury's verdict.’”      135 F.3d at 318 (quoting Brecht v. Abrahamson,

507 U.S. 619, 622, 113 S. Ct. 1710, 1714, 123 L. Ed. 2d 353

(1993)).     As a result, “a federal habeas court must conduct a

harmless error analysis of all trial errors . . . before granting

habeas relief.”       Id.    Here, it seems apparent, as it did to the

district    court,    that     had   the    jury   been    instructed     with    the

additional language sought by Nixon, the testimony adduced at trial

regarding the execution-style killing of Mrs. Tucker would have

inexorably led the jury to conclude beyond a reasonable doubt that

an aggravating circumstance existed.5              Thus, any error in the jury

      5
            The Mississippi Supreme Court found that the murder qualified under
the “especially heinous” aggravator based upon the following facts adduced at
trial:
      Mr. Nixon forcibly entered the house of a couple who feared he was
      there to kill them; Nixon fired several shots at Mr. Tucker in the
      presence of Mrs. Tucker; Mrs. Tucker was wrestled to the floor in
      preparation for her murder; Nixon held a pistol an inch from Mrs.

                                           22
instruction was harmless at best and the district court’s ruling to

that effect is not debatable among jurists of reason.            COA is not

warranted on this claim.

I.    Prior Violent Felony Claim

           Nixon asserts that his prior Texas conviction for rape

should not have been introduced before the jury to satisfy the

“prior violent felony” aggravating circumstance because he pled

guilty to statutory rape, not rape involving the use of force.           See

Miss.   Code   Ann.   §   99-19-101(5)(b)    (indicating    that   a   prior

conviction for “another capital offense or of a felony involving

the use or threat of violence to the person” is an aggravating

circumstance under Mississippi law). Mississippi law requires that

the   prosecutor   prove    each   aggravating    circumstance     beyond   a

reasonable doubt.     See Nixon, 533 So. 2d at 1099; Miss. Code Ann.

§ 99-19-103 (Supp. 1986).

           The 1958 Texas indictment to which Nixon pled guilty

accused him of “ma[king] an assault and . . . ravish[ing] and

hav[ing] carnal knowledge” of a woman under eighteen years of age.

The Mississippi Supreme Court held that this conviction qualified

as a prior violent felony based on the Texas Court of Criminal

Appeals decision in Rodrigues v. State, 308 S.W.2d 39 (Tex. Crim.


      Tucker’s head and fired a bullet into her brain; Mrs. Tucker was
      left to die, but was found within one-half hour bleeding from the
      mouth and nose and gasping for breath; and Mrs. Tucker struggled to
      live but died the next day.
Nixon, 533 So. 2d at 1097-98. These facts place the case beyond the norm even
of capital felonies.

                                     23
App. 1957).      Nixon, 533 So. 2d at 1098-99.      The district court

independently reviewed the claim and agreed with the Mississippi

court, reading Rodrigues to stand for the proposition that because

an indictment including the terms “ravish” and “assault” could

support a conviction for rape by force as well statutory rape, and

because the terms were not necessary to a conviction for statutory

rape, Nixon’s guilty plea qualified the conviction as a prior

violent felony.

            The district court relied upon the language in Rodrigues

which indicates that under Texas law,

      [t]he word “ravish” implies force and want of consent,
      and its use in the indictment in connection with the
      allegation of rape of a female between the ages of 15 and
      18 years, as here, renders the indictment sufficient to
      support a conviction for rape by force as well as for
      statutory rape.

Rodrigues, 308 S.W.2d at 40.     However, as Nixon points out, the

Texas court went on to hold that “[t]he word ‘ravish’ is not,

however, descriptive of the offense, and it is therefore not

necessary that force be proven in order to sustain a conviction

under    such   indictment.”   Id.    (emphasis   added).   Indeed,   in

Rodrigues, the Texas court rejected the state’s argument that such

an indictment could only support a conviction for rape by force.

Id.     As a result, the court held that the defendant should have

been permitted to submit a jury instruction indicating that the

previous unchaste behavior of the accuser would constitute a valid




                                     24
defense to the indictment — a defense that was only available in

statutory rape cases under Texas law at the time.6               Id.

            In addition to the dispute over the status of this

conviction as an aggravator, there is a question whether its being

placed before the jury amounted to harmless error.               See Billiott,

supra.

            Thus, we find it at least debatable among jurists of

reason whether a guilty plea to such an indictment can support a

jury finding that Nixon had committed a prior violent felony and

that such a finding may support the imposition of the death

penalty.7    Therefore we grant the COA on this claim.

J.    Double Use Claim

            Nixon next argues that the use of the “for pecuniary

gain”    aggravator    was   inappropriate     in   his   case   because   this

aggravator duplicates an element of his offense of conviction under

Mississippi’s capital murder statute.          See Miss. Code Ann. § 97-3-

19(2)(d). The Mississippi Supreme Court on direct appeal held that


      6
            The state, in its brief before this court, provides no analysis of
this issue and rather simply relies on the district court opinion and asserts
that the district court’s resolution of the claim is not debatable.
      7
             In holding that this claim is debatable among jurists of reason, we
do not suggest, as Nixon proposes, that it is appropriate to examine the Texas
state court proceedings related to Nixon’s prior conviction or information beyond
the fact of conviction, the underlying indictment and Nixon’s guilty plea to the
indictment. As the state points out, Mississippi law relating to sentencing
enhancements appears to indicate that such an examination is inappropriate
because of the potential for extended proceedings to consider the nature of
prior offenses. See Phillips v. State, 421 So. 2d 476, 481 (Miss. 1982) (“In
fulfilling its mission to determine whether a prior conviction is
constitutionally valid for the purpose of enhancing a defendant's sentence, the
trial court must not be placed in position of ‘retrying’ the prior case.”).

                                       25
claim   was     foreclosed     by   substantial    state   and   federal   court

precedent.      Nixon, 533 So. 2d at 1097.          Like that court and the

district court, we hold that Nixon’s claim was barred by existing

precedent.      See Lowenfield v. Phelps, 484 U.S. 231, 246, 108 S. Ct.

546, 555, 98 L. Ed. 2d 568 (1988) (the “fact that the aggravating

circumstance duplicated one of the elements of the crime does not

make [a death] sentence constitutionally infirm”); Tuilaepa v.

California, 512 U.S. 967, 971-72, 114 S. Ct. 2630, 2634-35, 129

L. Ed. 2d 750 (1994) (“To render a defendant eligible for the death

penalty in a homicide case, we have indicated that the trier of

fact must convict the defendant of murder and find one ‘aggravating

circumstance’ (or its equivalent) at either the guilt or penalty

phase.”     “The aggravating circumstance may be contained in the

definition of the crime or in a separate sentencing factor (or in

both).”) (emphasis added; internal citations omitted). Williams v.

Taylor, 529 U.S. 362, 392 n.16, 120 S. Ct. 1495, 1513 n. 16, 146

L.   Ed.   2d   389   (2000)    .     Nixon’s     purported   distinctions    of

Lowenfield and Tuilaepa are meritless; no COA is warranted.

K.    Psychological Assistance Claim

              Nixon argues that the trial court’s failure to appoint a

psychologist on his behalf violated his constitutional rights under

Ake v. Oklahoma, 470 U.S. at 83, 105 S. Ct. at 1096, and the due

process clause. The Mississippi Supreme Court denied this claim on

the merits on direct appeal.           Nixon, 533 So. 2d at 1095-97.         The



                                        26
federal district court on habeas rejected the claim on the merits

holding that Nixon had not even made a preliminary showing or

presented any evidence to the trial court, which suggested that an

expert would have provided any useful information in this case.

             We have read Ake to impose

     a constitutional obligation [upon the state] to provide
     an indigent criminal defendant with access to the
     assistance of a psychiatrist in the following two
     circumstances: (1) “when a defendant demonstrates to the
     trial judge that his sanity at the time of the offense is
     to be a significant factor at trial” and (2) “in the
     context of a capital sentencing proceeding, when the
     State presents psychiatric evidence of the defendant's
     future dangerousness.”

White v. Johnson, 153 F.3d 197, 200 (5th Cir. 1998) (quoting Ake,

470 U.S. at 83).        Nixon presented no evidence to the trial court

that his sanity at the time of the offense would be a significant

factor at trial nor did the state present psychiatric evidence at

the sentencing phase.

             Nixon     posits    more    broadly     that   he   sought   expert

assistance in order to obtain evidence in support of and to

establish mitigating circumstances at the sentencing phase.                   As

shown, this request does not state a valid claim under Ake, as

interpreted by this court.          White, 153 F.3d at 204.        Moreover, as

there   is    no     Supreme    Court    authority    enunciating     a   capital

defendant’s        constitutional       right   to    obtain     court-appointed

psychiatric counsel outside the standards of Ake, Nixon in effect

asks this court impermissibly to create a “new rule” of law,

contrary to Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103

                                         27
L. Ed. 2d 334 (1989).     The district court’s resolution of this

issue is not reasonably debatable for purposes of granting a COA.

L.   Claim for Ineffective Counsel at Motion for New Trial

          Finally, Nixon claims that he was denied his Sixth

Amendment right to counsel during consideration of his motion for

a new trial.     When this issue was raised on direct appeal, the

Mississippi Supreme Court, after noting that Nixon had no absolute

right to particular counsel because of the need to maintain an

orderly trial process, evaluated and found Nixon’s claim wanting as

an ineffective assistance claim under Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).   Nixon, 533 So.

2d at 1101-02.     The district court denied Nixon’s claim on the

merits, holding that he had demonstrated no conflict of interest

and that he was never deprived of the right to counsel.

          On the morning of the hearing on his motion for a new

trial, Nixon attempted to dismiss his trial counsel and obtain new

representation.    Nixon based his argument for new counsel on an

alleged conflict of interest that arose when his trial attorney

brought his co-defendant’s lawyer to meet with Nixon following his

conviction, and prior to the hearing on the new trial motion.

Nixon’s trial lawyer, aware that his client did not want his

services, repeatedly asked to be excused from his representation.

The trial judge, ostensibly concerned that Nixon was attempting to

delay the proceedings, denied Nixon’s motion.         However, upon



                                28
further consideration, the trial judge placed Nixon’s trial counsel

under oath and began questioning him about the alleged conflict.

After   hearing   from   both   Nixon’s   trial    counsel   and    his   co-

defendant’s counsel, the trial judge determined that no conflict

existed and that Nixon’s motion for new counsel would be denied.

The motion for a new trial was then argued by Nixon’s trial

counsel.

           Nixon now asserts that he was denied his Sixth Amendment

right to counsel because an actual conflict existed between Nixon

and his counsel, and he was completely deprived of counsel while

his lawyer was discussing the alleged conflict under oath before

the state trial court.      This issue is not reasonably debatable:

the district court and the state courts were clearly correct in

holding that there was no actual conflict that would have rendered

ineffective Nixon’s trial attorney’s representation of him during

the new trial motion.    There is no basis for Nixon’s claim that his

lawyer had an a priori conflict of interest for bringing a co-

defendant’s lawyer to meet with Nixon post-conviction.         In Bullock

v. Whitley, 53 F.3d 697 (5th Cir. 1995), we held that there was no

constitutional conflict of interest where a co-defendant’s attorney

took the lead in obtaining information from the defendant on behalf

of the defendant’s lawyer prior to trial.         53 F.3d at 702.   Setting

up a post-conviction meeting between the defendant and a co-

defendant’s attorney could not create a conflict of interest,

particularly when, as here, the state trial court found that Nixon

                                   29
himself requested the meeting.        In addition, it can hardly be

contended that Nixon’s trial attorney was testifying against his

client’s interest when the state judge questioned him regarding the

conflict of interest.   Given that both Nixon and his attorney had

asked for his removal, the attorney was essentially advocating

Nixon’s position at all times.

          Contrary to his assertions, Nixon was never deprived of

his right to counsel prior to or during the motion for a new trial.

Nixon had counsel — his trial attorney.    It is true that Nixon and

the attorney were unhappy about the continued representation, but

we have repeatedly stated that “[t]he Sixth Amendment . . . does

not guarantee an absolute right to the counsel of one's choice.”

United States v. Paternostro, 966 F.2d 907, 912 (5th Cir. 1992).

Nixon cites no authority for the argument that he was deprived of

his right to counsel while the judge was questioning his lawyer

regarding the alleged conflict of interest. Further, the fact that

dissenting judges on the Mississippi Supreme Court would have found

a conflict of interest or would have presumed prejudice to Nixon

from the circumstances does not automatically prove that reasonable

jurists could disagree. With due respect, the dissenting justices’

position does not follow this court’s interpretation of Strickland

and Cuyler v. Sullivan, 446 U.S. 335 (1980).     The question before

this court is whether reasonable jurists could debate whether the

state court’s adjudication of the claim was “reasonable” and

whether the district court’s assessment of the constitutional issue

                                 30
is debatable or wrong.    On the contrary, were we to hold as Nixon

desires, we would be creating a “new rule” of constitutional law,

a course barred to us by Teague.    See Wiley, 969 F.2d at 95-98.   As

a result, a COA is unwarranted.

                          III.   CONCLUSION

          For the reasons discussed above, Nixon’s application for

a certificate of appealability is GRANTED IN PART and DENIED IN

PART.   The certificate has been granted on Nixon’s Batson/Powers

and prior violent felony claims, but the Batson/Powers claim fails

on the merits.    Further briefing is needed on the prior violent

felony claim.    As to all other claims treated in this opinion, COA

is DENIED.




                                   31
