Collier v. Cockrell

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-10803

JAMES P. COLLIER,
Petitioner-Appellant,

versus

JANIE COCKRELL, Director, Texas Department
of Criminal Justice, Institutional Division,
Appellee-Respondent.

Appeal from United States District Court
for the Northern District of Texas

July 25, 2002

Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

CARL E. STEWART, Circuit Judge.

Petitioner James Paul Collier (“Collier”), convicted of capital murder in Texas and sentenced

to death, requests from this Court a Certificate of Appealability (“COA”) pursuant to 28 U.S.C.

§ 2253(c)(2). For the reasons set forth below, we DENY the COA.

FACTUAL AND PROCEDURAL BACKGROUND

A brief summation of the evidence presented at trial is all that is necessary for this review.

On the evening of March 14, 1995, Collier entered a house in Wichita Falls, Texas, where Collier’s

daughter was spending her spring break vacation, and shot and killed Gwendolyn Joy Reed and her
adult son, Timmy Reed. Neither of the two victims were related to Collier or involved in a dispute

with him, but Collier’s daughter was visiting her former step-father, who lived in the house with

Timmy Reed, at the time of the murders. After the murders, Collier drove to New Mexico. Collier

was apprehended in New Mexico and he gave a videotaped confession, during which he admitted

shooting the victims. In his confession, Collier stated that he initially went into the house with his

rifle because he was angry with his ex-wife and daughter because they refused to have contact with

him and because he believed that his daughter had been sexually abused by her former step-father.

In April of 1996, Co llier was convicted by a jury of capital murder for the murders of

Gwendolyn Joy Reed and Timmy Reed during the same criminal transaction and was sentenced to

death.1 On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence.

Collier v. State, 595 S.W.2d 621 (Tex. Crim. App. 1997). The United States Supreme Court denied

Collier’s petition for a writ of certiorari. Collier v. Texas, 525 U.S. 929 (1998).

Thereafter, Collier filed an application for state habeas relief, in which he alleged that he was

entitled to relief based on twenty-four grounds. On December 4, 1997, the trial court entered

findings of fact and conclusions of law, and recommended that relief be denied. The Texas Court of

Criminal Appeals adopted the findings of fact and conclusions of law of the trial court, and denied

relief on January 14, 1998. Ex Parte Collier, No. 36,143-01 (Tex. Crim. App. Jan. 14, 1998)

(unpublished).

1
Collier was sentenced to death by the jury’s “yes” and “no” answers, respectively, to two
special issues: (1) “Is there a probability that Collier would commit criminal acts of violence that
would constitute a continuing threat to society?” (2) “Is there, taking into consideration all of the
evidence, including the circumstances of the offense, Collier’s character and background, and
Collier’s personal moral culpability, a sufficient mitigating circumstance or circumstances to warrant
that a sentence of life imprisonment rather than a death sentence be imposed?”

2
 Collier filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in

federal court on October 1, 1999. Collier raised five claims in this petition: (1) ineffective assistance

of counsel based on his trial counsel’s failure to present any mitigating evidence and to object to

victim character evidence that was presented during the punishment phase of trial; (2) the trial court

violated his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States

Constitution by prohibiting him from conducting voir dire on his parole eligibility if given a life

sentence and by refusing to instruct the jury regarding parole eligibility; (3) the trial court denied

Collier his right to self-representation under the Sixth Amendment to the United States Constitution

by denying his request to suppress the original voir dire after he began representing himself in the

middle of the voir dire process; (4) Texas Code of Criminal Procedure article 11.071 is

unconstitutional because it requires that a state habeas application be filed before direct appeal is final;

and (5) the Texas Court of Criminal Appeals denied Collier’s due process rights under the Fourteenth

Amendment to the United States Constitution by refusing his request to appoint a neuropsychologist

to evaluate Collier during the state habeas process. The State moved for summary judgment on all

of Collier’s claims, and the district court granted that motion in its Memorandum Opinion and Order

dated May 9, 2001. The district court entered final judgment denying Collier’s § 2254 petition on

May 22, 2001.

Pursuant to § 2253(c)(2), Collier filed a request for a COA from the district court. On July

9, 2001, the district court incorporated by reference its May 9th order in support of its finding that

3
Collier had failed to make a substantial showing of the denial of a constitutional right and denied this

request. Collier now requests a COA from this Court.2

STANDARD OF REVIEW

This case is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”)

because Collier filed his § 2254 habeas petition in the district court on October 1, 1999, after the

April 24, 1996 effective date of the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997);

Tennard v. Cockrell, 284 F.3d 591, 594 (5th Cir. 2002). Under the AEDPA, before an appeal from

the dismissal or denial of a § 2254 habeas petition can proceed, a petitioner must obtain a COA. 28

U.S.C. § 2253(c)(2). A COA will be granted “only if the [petitioner makes] a substantial showing

of the denial of a constituti onal right. Id. To make a “substantial showing,” the petitioner “must

2
Before addressing the merits of Collier’s COA application, we note that on February 4, 2002,
the day that the panel heard oral arguments in this case, Collier’s counsel presented the court with
a “Motion for Permission to Rescind and Withdraw Petitioners Application for a Certificate of
Appealability Under 28 U.S.C. § 2253” with an affidavit attached that was signed by Collier on
August 28, 2001. When questioned about why this motion was filed on February 4, 2002, when
Collier’s affidavit was signed on August 28, 2001, Collier’s counsel stated that it took this long to
ascertain from Collier’s family that Collier truly intended to forego further appeals in this case.
Collier’s counsel also stated that in December of 2001, the last time that counsel had contact with
Collier, it was Collier’s intent to withdraw the COA application. The State’s response at oral
argument to this motion was not helpful because the State was not aware of the motion until that day.
The State requested that we deny Collier’s COA application and then remand the case back to the
district court for a competency determination. Given the dated nature of Collier’s affidavit, which
Collier has neither subsequently withdrawn nor ratified, and the fact that Collier’s counsel has not
contacted Collier since December and pressed Collier’s claims at oral argument, we are left without
a definitive basis from the record to determine if the withdrawal of Collier’s COA application is
viable. This application has been fully briefed and submit ed to this Court for decision, and oral
t
argument by the parties has been completed. Where an action of such magnitude, involving the life
of the petitioner, has been fully briefed and submitted to this Court for decision with assistance of
counsel, we construe the record in favor of maintaining Collier’s COA application and will proceed
to render a decision on the merits. See Gregg v. Georgia, 428 U.S. 153, 187 (1976) (“There is no
question that death as a punishment is unique in its severity and irrevocability.”); Flores v. Johnson,
210 F.3d 456, 459 (5th Cir. 2000) (“Death is the most final, and most severe, of punishments.”).

4
demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues

[in a different manner]; or that the questions are adequate to deserve encouragement to proceed

further.” Tennard, 284 F.3d at 594 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Where, as here, t he district court rejects a prisoner’s constitutional claims on the merits, “[t]he

petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Any

doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the

penalty may be considered in making this determination.” Tennard, 284 F.3d at 594.

In determining whether a COA should be granted, we are mindful of the deferential scheme

laid out in the AEDPA. Id. Federal courts defer to a state court’s adjudication of a petitioner’s

claims on the merits unless the state-court adjudication “(1) resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or (2) 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.” 28 U.S.C.

§ 2254(d)(1)-(2). Under the “contrary to” clause, a federal court may grant habeas relief if the state

court “reaches a legal conclusion in direct opposition to a prior decision of the United States Supreme

Court or when it reaches a different conclusion than the United States Supreme Court on a set of

materially indistinguishable facts.” Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir. 2002). Under the

“unreasonable application” clause, a federal court may grant the writ if the state court’s application

of clearly established federal law is “objectively unreasonable.” Id. Further, state court findings of

fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1).

5
 We review a district court’s findings of fact for clear error and issues of law de novo. Soffar

v. Johnson, 237 F.3d 411, 445 (5th Cir. 2000).

DISCUSSION

In his petition for COA, Collier makes three arguments. First, he claims that the state trial

court violated his Fifth, Eighth, and Fourteenth Amendment rights by refusing to (1) inform the jury

that he would have not been eligible for parole for forty years had he been given a life sentence and

(2) let Collier voir dire the jury on this issue. Second, he claims that he was denied his right to self-

representation when the state trial court denied his requests to (1) suppress the original voir dire

examination of the jury panel conducted by appointed counsel after Collier elected to represent

himself and (2) conduct voir dire of those venire members previously examined by counsel. Third,

Collier claims that he was denied the effective assistance of counsel by his trial counsel’s failure to

present mitigating evidence and to object to victim character evidence that was presented at the

punishment stage of trial. We will address each argument in turn.

I.

Collier argues that the state trial court violated his due process rights by failing to instruct the

jury that, if it elected to impose a life sentence, he would be ineligible for parole for forty years. The

trial judge denied Collier’s request to give a jury instruction on this point during the punishment phase

of his trial. Collier relies on Simmons v. South Carolina, in which a plurality of the Supreme Court

observed that “where the defendant’s future dangerousness is at issue, and state law prohibits the

defendant’s release on parole, due process requires that the sentencing jury be informed that the

defendant is parole ineligible.” 512 U.S. 154, 156 (1994). Collier argues that had the jury been

informed that a life sentence would require him to remain in prison for at least forty years, which

6
Collier asserts is comparable to a life sentence without parole, especially considering that he would

be ineligible for parole until he was eighty-eight years old, the jury may have determined that he

would not pose a continuing threat to society and thus chosen to give him a life sentence instead of

the death penalty.

Contrary to Collier’s argument, however, Simmons provides no support for his due process

challenge. The Supreme Court has repeatedly reiterated that Simmons held that when “a capital

defendant’s future dangerousness is at issue, and the only sentencing alternative to death available

to the jury is life imprisonment without possibility of parole, due process entitles the defendant to

inform the jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel.”

Kelly v. South Carolina, 122 S. Ct. 726, 728 (2002) (quoting Shafer v. South Carolina, 532 U.S. 36,

39 (2001)) (internal quotations omitted) (emphasis added); see also Ramdass v. Angelone, 530 U.S.

156, 166 (2000) (plurality opinion) (“The parole-ineligibility instruction is required only when,

assuming the jury fixes the sent ence at life, the defendant is ineligible for parole under state law.”

(emphasis added)). Further, our circuit has consistently emphasized that Simmons applies only when

there is a life-without-possibility-of-parole alternative to capital punishment, an alternative is not

available under Texas law. E.g., Tigner v. Cockrell, 264 F.3d 521, 525 (5th Cir. 2001); Wheat v.

Johnson, 238 F.3d 357, 362 (5t h Cir. 2001). At the time of Collier’s conviction, a defendant

convicted of capital murder who received a life sentence was ineligible for parole until he had served

forty years in prison. See TEX. CRIM. PROC. CODE ANN. art. 42.18 § 8(b) (Vernon Supp. 1995),

repealed by TEX. GOV’T CODE ANN. § 508.145(b) (Vernon 1998). Thus, because Collier did not face

a life sentence without any possibility of parole, he was not entitled to a Simmons jury instruction

regarding his forty-year parole ineligibility.

7
 To the extent that Collier urges that he was entitled to a Simmons instruction because this

lengthy parole ineligibility has the practical effect of a life sentence without the possibility of parole,

such an extension of Simmons would constitute a new rule of constitutional criminal law, and is thus

barred by the non-retroactivity principle announced in Teague v. Lane, 489 U.S. 288 (1989). See

Tigner, 264 F.3d at 525; Wheat, 238 F.3d at 361-62; Clark v. Johnson, 227 F.3d 273, 282 (5th Cir.

2000). Accordingly, Collier has failed to make a substantial showing of the denial of a constitutional

right on this due process claim.

In addition to asserting a due process claim, Collier argues that the state trial court’s failure

to give the jury instruction violated the Eighth Amendment prohibition against cruel and unusual

punishment. Collier correctly points out that the Supreme Court in Simmons expressly declined to

address whether its holding was also compelled by the Eighth Amendment. See 512 U.S. at 162 n.4.

This Court, however, has consistently held that neither the Due Process Clause nor the Eighth

Amendment requires a state court to give jury instructions on parole ineligibility in Texas capital

sentencing proceedings. E.g., Tigner, 264 F.3d at 525; Johnson v. Scott, 68 F.3d 106, 112 (5th Cir.

1995). Because Collier bases his argument on Simmons and future dangerousness, in light of this

Court’s precedent, Collier has not made a substantial showing of the denial of a constitutional right

with respect to this Eighth Amendment claim.

In a related claim, Collier argues that his due process and Eighth Amendment rights were

violated because the district court denied his motion to examine potential jurors regarding the forty-

year parole ineligibility for life sentences for capital murder.3 As explained above, Collier’s reliance

3
Defense counsel stated that he would have asked each juror the following: “I would ask each
juror if they were aware of what the parole law was in a capital murder case with a life sentence. If
they didn’t know, I would inform them it was a 40-year sentence. I would ask them, each juror, how

8
on Simmons is unavailing. This Court has specifically held that a capital murder defendant does not

have a constitutional right to question venire members regarding Texas parole law. Wheat, 238 F.3d

at 362; King v. Lynaugh, 850 F.2d 1055, 1060-61 (5th Cir. 1988) (en banc). In Wheat, which was

decided after Simmons, we rejected claims under the Fifth, Sixth, Eighth, and Fourteenth

Amendments. 238 F.3d at 362. Collier therefore has not made a substantial showing of the denial

of a constitutional right.

Collier continues his arguments above by asserting that he was entitled to a jury instruction

on parole eligibility or to conduct voir dire on the applicability of parole because the issue of parole

was raised by the State during voir dire and during the prosecutor’s closing and rebuttal arguments

at the punishment stage of trial as well as by a jury instruction given by the trial court, and because

several jurors considered parole when reaching their decisions on punishment. Collier first suggests

that by raising the issue of parole, the State opened the door to introducing evidence regarding parole

eligibility. Specifically, Collier complains that the prosecutor asked several prospective jurors whether

they would be able to disregard any outside knowledge about parole and not consider parole when

answering the special issues at the punishment stage and, during the State’s arguments at punishment,

the prosecutor stated that Collier would be a continuing threat to society whether he was inside or

outside of prison. In making this claim based upon the prosecutor’s conduct, Collier continues to rely

on Simmons. In Simmons, Ramdass, Shafer, and Kelley, the Supreme Court did not suggest that the

prosecution can “open the door” and somehow create a constitutional right that the potential jurors

and the sentencing jury be informed about the defendant ’s parole eligibility. Collier provides no

they felt that 40-year minimum affected the question of future dangerousness. And, also, given the
fact that it was a 40-year minimum on a life sentence, how it would affect their opinion of a life
sentence versus a death sentence.”

9
further case law to support this argument. Thus, Collier has failed to show that the district court’s

assessment of this claim is debatable among reasonable jurists. We find that Collier has not made a

substantial showing of the denial of a constitutional right.

Collier next complains that, in the trial court’s charge on punishment, the court instructed the

jury as follows regarding the issue of parole: “During your deliberations you are not to consider or

discuss any possible actions of the Board of Pardons and Parole or the Governor nor how long this

defendant will be required to serve on a sentence of life imprisonment.” Collier asserts that this

instruction implied that a life sent ence is not really a sentence for life. We agree with the district

court, however, that, in actuality, the jury charge merely instructed the jury not to consider parole in

reaching its decision. Because the Constitution does not require a jury instruction on parole eligibility

in a Texas capital murder case, it follows that it is not unconstitutional to instruct the jury not to

consider parole. See Muniz v. Johnson, 132 F.3d 214, 224 (5th Cir. 1998) (rejecting a challenge to

the constitutionality of instructing a Texas jury not to consider a capital defendant’s parole eligibility

if he received a sentence of life).

As further support of his claim for relief, Collier submitted an affidavit from an investigator

which states that three jurors from Collier’s trial told the investigator that they considered parole in

deciding to impose t he death penalty.4 The state habeas court found that Collier neither offered

affidavits from the three jurors in question nor alleged that such affidavits were unobtainable and that

Collier did not allege that any discussion of parole had occurred during deliberations. The state court

4
The investigator’s affidavit states: “Three of the jurors I interviewed told me that the
possibility of Mr. Collier being released on parole in the future was a factor in their decision to vote
for the death penalty. One of these jurors told me that he had voted for the death penalty so that Mr.
Collier would have no chance of getting out of prison.”

10
also concluded that “[a]bsent a showing of inability to obtain affidavits from the jurors in question,

the statement of the investigator . . . is hearsay, and will not be considered.” The district court found

that the investigator’s affidavit is hearsay and “does not establish any federal constitutional error.”

The district court denied this claim because, at most, the evidence shows that some jurors thought

about parole and there was no evidence that there were deliberations on parole or that incorrect

information about parole was given to the jury. See Monroe v. Collins, 951 F.2d 49, 52-53 (holding

that a juror’s accurate comments about parole during deliberations did not violate the defendant’s

constitutional rights). We accord the state habeas court’s factual findings a presumption of

correctness pursuant to § 2254(e)(1), and Collier has failed to rebut this presumption by clear and

convincing evidence. As the state courts and the district court concluded, Collier does not present

evidence to support his allegation of jury misconduct. Thus, Co llier fails to show a federal

constitutional violation on this ground.5

Finally, Collier contends that because Texas’s sentencing scheme treated capital defendants

differently from non-capital defendants, it violated the Fourteenth Amendment’s guarantee of equal

5
In his application for COA before this Court, Collier also contends that his right to due
course of law under Article 1, Section 19 of the Texas Constitution was violated when three jurors
disregarded the trial court’s jury instructions and considered the Texas parole laws during their
deliberations. See TEX. CONST. art. 1, § 19 (“No citizen of this State shall be deprived of life, liberty,
property, privileges or immunities, or in any manner disfranchised, except by the due course of the
law of the land.”). In support of this argument, Collier points to Smith v. State, where the Texas
Court of Criminal Appeals held that “were a jury to consider parole in its deliberations a defendant
may be entitled to a new trial.” 898 S.W.2d 838, 852 (Tex. Crim. App. 1995). Collier’s claim is
without merit because it is based solely on state law and therefore does not state a claim for federal
habeas relief. E.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“We have stated many times that
federal habeas corpus relief does not lie for errors of state law.” (citations and internal quotations
omitted)); Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir. 1998) (holding that “claims that the trial
court improperly applied state law do not constitute an independent basis for federal habeas relief”;
rather, a habeas applicant must claim violation of federal constitutional right).

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protection. At the time of Collier’s conviction, Texas law barred judges from instructing juries on

parole eligibility in capital cases, but allowed such instructions in non-capital felony cases.6 Applying

rational basis review, t his Court has previously rejected equal protection challenges to Texas’s

sentencing scheme, holding that Texas could rationally conclude that juries should not be instructed

on parole ineligibility in capital cases only. Tigner, 264 F.3d at 526; Green v. Johnson, 160 F.3d

1029, (5th Cir. 1998). As a result, Collier’s equal protection claim fails to show the denial of a

constitutional right. Thus, no COA will issue on Collier’s various claims regarding parole eligibility.

II.

Collier complains in two related grounds that his Sixth Amendment right of self-representation

was abridged. Collier relies on Faretta v. California, in which the Supreme Court held that a criminal

defendant has a constitutional right under the Sixth Amendment to proceed without counsel and

represent himself at trial when he elects to do so. 422 U.S. 806, 819 (1975).

John Curry (“Curry”) was initially appointed to represent Collier. On February 23, 1996, five

days into the voir dire process, Collier filed a request to substitute counsel, which was denied. On

February 26, 1996, Collier filed a request to proceed pro se and for the appointment of standby

counsel. At the time Collier made this request, nineteen venire members had been questioned, seven

of which were excused. On February 29, 1996, after a hearing regarding Collier’s competency to

waive counsel and the voluntariness of the waiver, the trial court granted Collier’s motion to

represent himself, with Curry acting as standby counsel. That same day, Collier filed a request to

suppress the original voir dire and to order additional voir dire. Collier stated that he believed Curry

6
Texas now allows a capital defendant to receive a jury instruction regarding his parole
eligibility. See TEX. CRIM. PROC. CODE Ann. art. 37.071(e)(2)(b) (Vernon 2002).

12
had not spent enough time discussing the lesser offenses of murder and manslaughter and did not

agree with the excusal of certain jurors. This motion was denied by the trial court on March 1, 1996.

On March 27, 1996, however, the trial court stated that, at the suggestion of the State and with the

agreement of the defense, the parties would be allowed to speak individually with the first eleven

members of the panel who were placed on the panel before Collier began representing himself. The

parties re-questioned ten of these eleven jurors individually and agreed to excuse Juror Kennedy, who

was the first juror on the panel. Two of the ten re-questioned panel members served on Collier’s jury.

Collier first claims that his right of self-representation was violated when the state trial court

failed to suppress the original voir dire examination of the jury panel after Collier asserted his right

to self-representation and begin the voir dire process again. When Collier raised this Faretta claim

on state habeas review, the state court found that his Sixth Amendment right to self-representation

was not violated by the trial court’s failure to suppress the original voir dire and empanel a new jury

panel because “empaneling a new venire in a death penalty case would have amounted to more than

an ‘inconvenience’ or ‘disruption’ in the trial proceedings; it would have ended the proceedings, and

been the functional equivalent of a mistrial.” The district court held that the state court’s resolution

of this claim was not an unreasonable application of federal law. The district court observed that the

right of self-representation does not attach until it is asserted. See Brown v. Wainwright, 665 F.2d

607, 610 (5th Cir. 1982) (en banc) (holding that unlike the Sixth Amendment right to counsel, which

is in effect until waived, the right of self-representation is not effective until asserted). The district

court pointed out that the trial court honored Collier’s request to proceed pro se as soon as it was

13
made, and concluded that because Collier “did not assert his right until several days of voir dire had

already occurred, federal law did not require the trial court to start the trial process all over again.”

Collier’s second claim is that the trial court’s refusal to allow Collier to conduct voir dire of

those venire members previously examined by counsel violated his right of self-representation.

Regarding Collier’s assertion that he should have been allowed to re-question several venire members,

the state habeas court found that Collier had procedurally defaulted this claim because his request to

suppress the original voir dire did not contain a request to have the nineteen prospective jurors

recalled for additional questioning and Collier pointed to no question that he wished to ask these

jurors. Further, the state court concluded that Collier’s right to self-representation was not violated

by the trial court’s denial of additional questioning. The district court held that the state court’s

resolution of this claim was not an unreasonable application of federal law. The district court noted

that the trial court allowed Collier to re-question every panel member that had not been excused and

merely denied Collier the opportunity to question eight potential jurors who were excused before he

began representing himself. Thus, the district court concluded that Collier failed to show that his

right to self-representation was denied.

Collier does not point to any cases that specifically address his claims. He merely contends

that his entitlement to a new jury panel and to have prospective jurors recalled for additional

questioning when he began proceeding pro se during voir dire is implicit in his right to represent

himself under Faretta. Collier argues that as long as his request is not made for the purpose of

obstructing the proceedings, his right of self-representation trumps the inconvenience of beginning

the voir dire process anew or recalling prospective jurors. These claims are meritless. Collier has

not shown that the reasonable jurists would find the district court’s assessment of his Faretta claims

14
debatable or wrong. We find that Collier has not made a substantial showing that his right of self-

representation was denied, and thus deny his request for a COA.

III.

Finally, Collier submits that he was denied effective assistance of counsel because Curry, when

asked to resume as counsel during the punishment stage of trial, failed to present mitigating evidence

and object to victim character evidence that was presented by the State during punishment. During

oral argument, Collier’s counsel sought to make much of the contention that Curry’s decision to not

offer mitigating evidence constituted ineffective assistance of counsel. However, Collier’s request

for COA and brief contained only two paragraphs regarding ineffective assistance of counsel taken

directly from the opinion of the district court denying Collier’s federal habeas petition. “This Court

has made clear that conclusory allegations of ineffective assistance of counsel do not raise a

constitutional issue in a federal habeas proceeding.” Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.

2000) (citing Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983)). Considering the caution that we

exercise in a capital case, because the district court addressed the merits of these claims, we will do

so as well.

To prevail on ineffective assistance of counsel claims, Collier must show that Curry’s

performance was deficient and that the deficient performance resulted in actual prejudice. Strickland

v. Washington, 466 U.S. 688, 687 (1984). Aft er reviewing Collier’s petition for a writ of habeas

corpus, his request for a COA in the district court, and the applicable case law, we conclude that

Collier has shown neither deficient performance nor prejudice. Because Collier cannot prevail on his

Strickland claim, we refuse to grant a COA on this issue.

CONCLUSION

15
 Collier has not made a substantial showing of the denial of a constitutional right. We

therefore DENY his request for a COA. The Motion for Permission to Rescind and Withdraw

Petitioners Application for a Certificate of Appealability Under 28 U.S.C. § 2253 is DENIED.

DENIED.

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