Berry v. Epps

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS April 24, 2007
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-70051

EARL WESLEY BERRY,

Petitioner - Appellant,

versus

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

Respondent - Appellee.

Appeal from the United States District Court
for the Northern District of Mississippi
(1:04-CV328-D-D)

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

For a murder committed in late 1987, Earl Wesley Berry was

convicted in Mississippi state court of capital murder and

sentenced to death. The district court denied habeas relief and a

certificate of appealability (COA). Berry seeks to appeal that

decision. In order to be able to do so, he requests a COA. COA

DENIED.

*
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this opinion should not be published and is not precedent except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.
 I.

Mary Bounds was reported missing on 29 November 1987. A few

days later, on 1 December, her vehicle was located in Houston,

Mississippi. Inspection of the vehicle revealed spattered blood

around the driver’s side door. Mary Bounds’ body was found nearby;

she had been severely beaten. It was later determined that she

died of head injuries from repeated blows.

Berry’s confession provided the details of what transpired.

On the evening of 29 November 1987, while driving through Houston

in his grandmother’s vehicle, Berry saw Mary Bounds near a church.

As she was preparing to enter her vehicle, he approached, and hit,

her and forced her into his vehicle. Berry then drove out of town.

Berry took Mary Bounds into a wooded area and ordered her to

lie down, intending to rape her. Berry did not do so; he took her

back to the vehicle, telling her they would return to town.

Instead, Berry drove to another wooded area where they exited the

vehicle. Mary Bounds pleaded with Berry, but he beat her with his

fists and forearm. Afterwards, he carried her further into the

woods and left her.

Berry drove to his grandmother’s house, disposing of a pair of

mismatched tennis shoes along the way. At his grandmother’s house,

he burned his bloodied clothes and wiped the vehicle he had used of

any blood stains with a towel, which he threw into a nearby pond.

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 Berry’s brother, who was at the house, witnessed some of this

suspicious behavior. On 5 December 1987, he called investigators

and told them what he had observed. The next day, Berry was

arrested at his grandmother’s home and soon confessed to the crime.

Police found the mismatched tennis shoes Berry had discarded; in

the above-referenced pond, they found a bloodied towel.

Berry was indicted for the murder and kidnapping of Mary

Bounds, and as a habitual criminal, on 1 March 1988. In a

bifurcated (guilt/innocence and punishment phases) jury trial

(first trial), he was convicted, inter alia, of capital murder, in

violation of Mississippi Code Annotated § 97-3-19(2)(e) (killing in

connection with a kidnapping), and, on 28 October 1998, sentenced

to death.

Berry appealed the conviction and sentence to the Mississippi

Supreme Court. It affirmed the conviction but vacated the death

sentence and remanded for resentencing, holding the jury

instruction with regard to the “especially heinous, atrocious or

cruel” aggravating circumstances, a condition required for a death

sentence, failed to appropriately channel the jury’s discretion.

Berry v. State, 575 So.2d 1 (Miss. 1990) (Berry I).

Berry’s resentencing trial began on 22 June 1992, after venue

had been changed from Chickasaw to Union County, due to the nature

and extent of the publicity surrounding the case. On 25 June,

Berry was again sentenced to death. That sentence was appealed to

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the Mississippi Supreme Court. It affirmed in part, remanding to

the trial court to hold a hearing on whether the Batson test

applied to the State’s striking all black potential jury members in

a case involving a white defendant. Berry v. State, 703 So.2d 269

(Miss. 1997) (Berry II).

On remand, the trial court held the Batson hearing and ruled:

Berry failed to establish a prima facie case for discrimination;

and the State’s strikes were race-neutral. Berry appealed, and the

Mississippi Supreme Court affirmed. Berry v. State, 802 So.2d 1033

(Miss. 2001) (Berry III). The Supreme Court of the United States

denied review. Berry v. Mississippi, 537 U.S. 828 (2002).

On 20 December 2002, Berry requested post-conviction relief

from the Mississippi Supreme Court. Among other claims, Berry

sought relief for three of the five claims for which he now

requests a COA. The state supreme court (state-habeas court) found

one of those claims procedurally barred under Mississippi Code

Annotated § 99-39-21 (state habeas law governing the procedural

waiver of objections, defenses, and claims and res judicata), and

one without merit. Concerning Berry’s claim (based on two

instances) for ineffective assistance of counsel (IAC) for which he

requests a COA here, the state-habeas court found his claim

concerning one instance procedurally barred and the claim

concerning the other without merit. Habeas relief was denied.

Berry v. State, 882 So.2d 157 (Miss. 2004) (Berry IV). The Supreme

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Court of the United States again denied relief. Berry v.

Mississippi, 544 U.S. 950 (2005).

In October 2005, Berry requested federal habeas relief under

28 U.S.C. § 2254, presenting 12 claims. A year later, in a 64-page

opinion, the district court denied relief. Berry v. Epps, 2006 WL

2865064 (N.D. Miss. 5 Oct. 2006) (Berry V).

In order to be able to appeal that habeas denial, Berry

requested a COA from the district court, pursuant to 28 U.S.C. §

2253(c), for the following five claims raised, and denied, in his

federal habeas application: for his first trial, (1) the admission

of his confession, and (2) the denial of his change-of-venue

motion; and for his resentencing trial, (3) IAC, (4) prosecutorial

misconduct, and (5) the admission of photograph and videotape

evidence. Berry also claimed the district court should have

considered his defense against the imposition of any procedural

default with regard to claims raised in his habeas petition. (In

response to assertions that some of his claims were unexhausted and

procedurally defaulted, Berry claimed: there was “an absence of

available State corrective process[es]”, 28 U.S.C. §

2254(b)(1)(B)(i), or “circumstances exist[ed] that render[ed] [the

State court corrective] process[es] ineffective to protect the

rights of the applicant”, 28 U.S.C. § 2254(b)(1)(B)(ii); and, but

for these issues, his claims would be valid.)

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 The district court denied a COA. Berry v. Epps, 2006 WL

3147724, *1 (N.D. Miss. 2 Nov. 2006) (Berry VI). Therefore, in

order to appeal the habeas denial, Berry must obtain a COA here.

Berry seeks a COA for the same five claims for which a COA was

denied in district court.

II.

Berry’s federal habeas application is subject to the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.

104-132, 110 Stat. 1214 (1996) (AEDPA). See, e.g., Penry v.

Johnson, 532 U.S. 782, 792 (2001). As noted, under AEDPA, in order

for an appeal to be permitted from the denial of habeas relief on

a claim, Berry must obtain a COA, from either the district court or

this court. 28 U.S.C. § 2253(c); FED. R. APP. P. 22(b)(1); Slack v.

McDaniel, 529 U.S. 473, 478 (2000). Under AEDPA, a COA may not

issue unless Berry makes a “substantial showing of the denial of a

constitutional right”. 28 U.S.C. § 2253(c)(2); see also Slack, 529

U.S. at 483. This requires demonstrating “reasonable jurists could

debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed

further”. Slack, 529 U.S. at 483-84 (internal quotations and

citations omitted).

In deciding whether to grant a COA, we are limited, inter

alia, to a “threshold inquiry into the underlying merit” of Berry’s

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claims. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). This

inquiry “does not require a full consideration of the factual or

legal bases adduced in support of the claims”; instead, we are to

conduct “an overview of the claims in the habeas petition and a

general assessment of their merits”. Id. at 336. Because a death

penalty was imposed, any doubts about whether a COA should be

granted will be resolved in Berry’s favor. E.g., Hernandez v.

Johnson, 213 F.3d 243, 248 (5th Cir. 2000).

Concerning our mandated threshold-inquiry, in ruling on the

habeas application, the district court was required by AEDPA to

defer to the state court’s resolution of questions of law, as well

as mixed questions of law and fact, unless the state-court decision

was “contrary to” or an “unreasonable application” of clearly

established federal law, as determined by the Supreme Court. 28

U.S.C. § 2254(d)(1); see Hill v. Johnson, 210 F.3d 481, 484-85 (5th

Cir. 2000). A state-court decision is 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”. Miniel v. Cockrell, 339 F.3d

331, 337 (5th Cir. 2003). An unreasonable application of law

differs from an incorrect application. See, e.g., Williams v.

Taylor, 529 U.S. 362, 409-12 (2000). Consequently, under AEDPA,

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federal courts may correct an erroneous application of law only if

it is also unreasonable. Id.

Furthermore, in ruling on the application, the district court

was required by AEDPA to defer to state-court factual findings

unless they were “based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceedings”. 28 U.S.C. § 2254(d)(2). Those factual findings are

“presumed to be correct”; Berry had the “burden of rebutting that

presumption by clear and convincing evidence”. 28 U.S.C. §

2254(e)(1).

As discussed, as he did in district court, Berry seeks a COA

for each of the following five claims. First, at his first trial,

because his testimony on whether he was afforded his rights under

Miranda v. Arizona, 384 U.S. 436 (1966), conflicted with that of

the State’s witnesses, his confession should not have been

admitted. Second, the trial court’s refusal to change venue for

that first trial, despite extensive pre-trial publicity, denied him

his rights to trial by an impartial jury, in violation of the Sixth

Amendment. Third, at his resentencing trial, his counsel was

constitutionally ineffective under Strickland v. Washington, 466

U.S. 668 (1984) because: he allowed the trial court to refer to

Berry as a “habitual offender”; and he did not secure a meaningful

review of certain conduct by the prosecutor. Fourth, for that

trial, the prosecutor acted vindictively in denying him a plea

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bargain and the district court failed to address this in its

analysis. Fifth, at that resentencing trial, inflammatory

photographs and videotape evidence denied him a fair trial. As a

collateral claim, Berry asserts, as he did in district court, that

certain of his other claims should not be procedurally defaulted

because of asserted deficiencies in the State’s post-conviction

review process, in violation of 28 U.S.C. § 2254(b)(1)(B). (This

is not a COA request because it does not concern a claim for the

violation of a constitutional right. Instead, it is presented to

establish cause to overcome procedural default on claims concerning

such a right.)

At best, Berry’s COA request is extremely cryptic and

conclusory. Moreover, for each of the underlying five claims, he

cites no authority for why he is entitled to a COA. Instead, at

the start of his ten-page request, he simply cites general

authority for when a COA should issue. In short, it is quite

questionable that the request can be considered. See FED. R. APP.

P. 28(a) (requiring an appellant's contention contain the reasons

he deserves the requested relief with citation to the authorities,

statutes, and parts of the record upon which he relies); e.g.,

Hughes v. Dretke, 412 F.3d 582, 597 (5th Cir.) (holding a

petitioner who summarily recites a claim for relief without

discussing its legal and factual basis, risks waiving it), cert.

denied, 126 S. Ct. 1347 (2006). Nevertheless, we will consider his

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request. Berry’s counsel are cautioned that, in the future, such

inadequate briefing may result in a COA request’s not being

considered.

A.

As an initial matter, Berry claims the district court erred by

not fully considering a memorandum attached as an exhibit (Grayson

Memo) to his federal habeas petition. That memorandum was filed in

Grayson v. Epps, 1:04 CV 708-B (S.D. Miss.). Pursuant to it, Berry

maintains no procedural default should be asserted against any of

his claims because of the claimed ineffective post-conviction

review process, or the absence of any meaningful corrective

process, in the State of Mississippi, as is required under 28

U.S.C. § 2254(b)(1)(B)(i) and (ii).

In district court, Berry asserted that, because of these

claimed inadequacies, the court should reject any proposed

procedural bars. That court held Berry waived this contention.

[Berry] repeatedly directs the Court to the
Grayson Memo in a blanket manner, offering no
argument in support thereof, without citing
any portion of it in the body or the petition
or supporting memorandum, and without offering
any explanation of how it is relevant to his
case. [Berry]’s argument is conclusory and
without requisite specificity or relevance to
this petition ... [; and,] under the standards
set forth by the AEDPA, the matter is waived.

Berry V, 2006 WL 2865064 at *5.

Berry’s contention here has the same defect. He simply

references the Grayson Memo without explaining how the state post-

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conviction review processes were defective; he merely states “a

review of said Memorandum makes clear how there was an absence of

available State corrective process in [Berry’s] case”.

Furthermore, Berry does not specify the type relief he seeks or

what claims should be resurrected, instead stating: “This Court

could decide all the issues differently that involved application

of the Memorandum. Thus, the [COA] should issue”. As held by the

district court, because Berry has failed to brief this contention

here, it is waived. See, e.g., Lookingbill v. Cockrell, 293 F.3d

256, 263 (5th Cir. 2002) (“Where a habeas petitioner fails to brief

an argument adequately, [this court] consider[s] it waived.”).

B.

As discussed, the conclusory COA request falls far short of

showing entitlement to a COA for any claim. In any event, for each

of the five claims for which Berry requests a COA, the district

court’s holding the state-court decision for each claim not

unreasonable under AEDPA is not debatable among reasonable jurists,

nor does any claim merit further development. Therefore, as

developed infra, a COA is denied for each claim.

1.

Following his arrest, Berry gave a statement to investigators

confessing to Mary Bounds’ murder. Pre-trial, Berry moved to

suppress that statement. For his first COA request, Berry

contends: because he and the State’s witnesses gave conflicting

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testimony on whether he was given his Miranda warnings, reasonable

jurists could differ as to the district court’s ruling that the

state-court decision (allowing admission of the confession) was not

unreasonable under AEDPA.

At the two-day pre-trial suppression hearing in October 1988,

Berry testified: Officers advised him he could have an attorney;

he requested one numerous times; and finally, he was given the

opportunity to call his attorney but could not reach him on a

Sunday. Police Investigator Gore testified as follows. Berry was

advised of his Miranda rights prior to his arrest and before he was

initially questioned at his grandmother’s home. Berry also asked

for, and was given, the opportunity to speak to an attorney when he

arrived at the jail. When Berry was brought to the jail’s office

to call his attorney, however, he stated: he no longer desired to

contact an attorney; and he was willing to talk to investigators

without an attorney’s being present. Officers again read Berry his

Miranda rights, at which point Berry confessed to the crime and

signed a statement regarding what transpired. This testimony was

supported by that of other Officers who were present at that time.

In denying the suppression motion, the trial court ruled: the

statement “was freely and voluntarily given; and the constitutional

requirements [as to its admissibility] were met”. At the first

trial, Investigator Gore read Berry’s statement to the jury.

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 On direct appeal from that trial, the Mississippi Supreme

Court affirmed the trial court’s finding the statement was given

voluntarily and ruled that, even if Berry had sufficiently invoked

his right to counsel, he had “knowingly and intelligently” waived

it. Berry I, 575 So.2d at 6.

At his resentencing trial, Berry’s objection to the

introduction of the statement was overruled. The claim was again

presented to the Mississippi Supreme Court on appeal from that

trial. In this instance, that court held it procedurally barred.

Berry II, 703 So.2d at 290-91. (In the alternative, the court

addressed the merits of the claim and found no error. Id.)

In his state-habeas petition, Berry took issue with the ruling

at the resentencing trial not to allow him the opportunity to

attack the confession or to argue to the jury how it was procured,

essentially to rebut evidence during sentencing which had been

found admissible at the first trial’s guilt/innocent phase. The

state-habeas court found: although defendants should be given

broad latitude in introducing mitigating evidence during

sentencing, Berry did not state how an attack on the confession

would constitute such evidence. Berry IV, 882 So.2d at 168.

Furthermore, the state-habeas court ruled Berry was not entitled to

argue “residual doubt” during the resentencing trial as to evidence

deemed admissible during his first trial. Id.

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 In denying relief on this claim, the district court noted:

Berry refused to call an attorney when law enforcement officials

attempted to satisfy his request to speak with one; and Berry

waived his right to counsel when he agreed to give a statement

without counsel’s being present. Berry V, 2006 WL 2865064 at *8-9.

The district court held: “[T]he giving of Miranda warnings and

subsequent waiver of the right to counsel meets the burden of

making [Berry] aware of his right, and the possible consequences of

for[e]going that right, thereby making the waiver sufficiently

knowing and intelligent”. Id. at *9. Pursuant to AEDPA, it held:

because the state-habeas court’s factual findings were reasonable

and its decision was neither contrary to, nor an unreasonable

application of, clearly established Supreme Court precedent, Berry

was not entitled to federal habeas relief.

For COA purposes, Berry notes that the state court, not the

jury, decided admissibility of his confession, and claims: that

court’s factfinding is not entitled under AEDPA to the deference

accorded factfinding by a jury; and, at the suppression hearing,

the state court should have believed his testimony over that of the

Officers. To the contrary, the Mississippi Supreme Court, both on

direct appeal and as the state-habeas court, found sufficient

evidence to support the trial court’s decision; as noted,

Investigator Gore’s testimony was supported by that of other

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Officers who testified that Berry knowingly and voluntarily waived

his right to counsel for this claim.

Generally, under AEDPA, “[a] credibility determination by the

state ... court ... is afforded deference”. Coleman v. Quarterman,

456 F.3d 537, 541 (5th Cir. 2006); Miller-El, 537 U.S. at 340 (“A

federal court's collateral review of a state-court decision must be

consistent with the respect due state courts in our federal system.

Where 28 U.S.C. § 2254 applies, our habeas jurisprudence embodies

this deference.”). Berry fails to satisfy the standard for

obtaining a COA for this claim.

2.

Prior to his first trial, Berry moved for a change of venue

due to claimed extensive pretrial publicity and the prominence of

the victim in the county, contending not doing so would be

violative of the Sixth, Eighth, and Fourteenth Amendments. At the

2 September 1988 hearing on the motion, 11 community witnesses

testified Berry could get a fair trial. On cross-examination of

the three witnesses presented by Berry, the local-newspaper

publisher admitted Berry would receive a fair trial; the other two

admitted they were related to Berry by marriage.

The trial court ruled no evidence warranted a venue change.

It also denied Berry’s motion for a county-wide venire, pursuant to

Mississippi Code Annotated § 13-5-21, because venire members from

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the court’s judicial district were not prejudiced and would be able

to serve.

On appeal, the Mississippi Supreme Court found no abuse of

discretion in the denial of the change-of-venue motion. Berry I,

515 So.2d at 9. As noted, venue was changed for the resentencing

trial. See Berry II, 703 So.2d at 273. (Although he did not seek

federal habeas relief on this point, Berry claimed in his state-

habeas petition that he received IAC due to not obtaining a venue

change for the first trial. The state-habeas court applied the

well-established two-part test in Strickland, 466 U.S. at 687:

counsel’s performance must be deficient; and that deficiency caused

prejudice. It held that, even assuming deficient performance,

there was no prejudice because such performance did not deprive

Berry of a fair trial. Berry IV, 882 So.2d at 162.)

In his federal habeas application, Berry claimed: due to the

community atmosphere, he was deprived of his right to a fair and

impartial jury by the trial court’s denial of his change-of-venue

motion. In support, Berry asserted: the community interest

generated substantial discussion about his crime, as did many

newspaper articles; extraneous information influenced the jury’s

verdict; and the trial court did not question prospective jurors

individually, leading to situations in which a venire member

answered questions in the same way as had other members. In the

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alternative, Berry contended he was entitled to a county-wide

venire.

The district court held: because Berry did not show either

inflammatory pretrial publicity or juror bias, see Busby v. Dretke,

359 F.3d 708, 725-726 (5th Cir. 2004), he did not suffer any

prejudice; therefore, under AEDPA, the Mississippi Supreme Court

was not unreasonable in holding there was no abuse of discretion in

the trial court’s denying the motion. Berry V, 2006 WL 2865064 at

*12. It also held the trial court’s denying a county-wide venire

was a matter of state law, not subject to federal habeas review,

citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Id.

Finally, the court ruled Berry’s contention about the trial court’s

failure to question jurors individually had no legal or factual

support. Id.

Berry seeks a COA for his claim that the Mississippi Supreme

Court failed to consider fully the preconceived notions held by

venire members and the effect that talking about the crime had on

such members. Berry fails to meet the standard for obtaining a COA

because he fails to show reasonable jurists would question the

district court’s rulings. In that regard, in district court, Berry

did not demonstrate pretrial publicity was so inflammatory that it

saturated the community so as to render a fair trial virtually

impossible, Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir. 1980);

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and furthermore, he failed to show any juror bias, e.g., Busby, 359

F.3d at 725-26.

3.

Berry next requests a COA for an IAC claim. As discussed

supra, Berry was required to demonstrate in state court both that

such performance was deficient, and that it prejudiced his defense.

Strickland, 466 U.S. at 687. Under AEDPA, review by the district

court was limited to whether the state-court’s IAC decision was

unreasonable.

For that purpose, counsel’s performance is deficient if it

falls “below an objective standard of reasonableness”. Id. at 688.

There is a “strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance”. Id. at 689.

To establish prejudice, Berry was required in state court to

demonstrate there was a “reasonable probability that but for

counsel’s unprofessional errors, the result of the proceeding would

have been different”. Id. at 694. “A reasonable probability is

one that is sufficient to undermine confidence in the outcome.”

Id.

Of the numerous IAC claims raised in his federal habeas

application, Berry requests a COA only for such claims relating to

two separate occurrences during his resentencing trial. The first

claim is that counsel was ineffective because he failed to object

to Berry’s being described as a “habitual offender” during voir

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dire. The second claim is that counsel failed to “proper[ly]

record” the prosecutor’s engaging in theatrics by stomping around

the victim’s clothes, which were lying on the floor, during closing

argument when describing how Mary Bounds was hit, an act Berry

contends was inflammatory and prejudicial; Berry claims this issue

has not been properly reviewed in either the state or federal

proceedings. For this COA request, Berry references, again without

discussion, the earlier-described Grayson Memo.

a.

Concerning the requested COA for the habitual-offender claim,

the Mississippi Supreme Court, on appeal from Berry’s first trial,

held “compelling reasons” supported the requirement that a jury

should have been made aware that Berry’s status as a habitual

offender meant a “life” sentence means “life without parole”.

Berry I, 575 So.2d at 13. At the resentencing trial, the court

disclosed during voir dire that Berry was a habitual offender and

included this in its instructions. Berry IV, 882 So.2d at 163.

Berry appealed the use of the trial court’s language, contending it

was improper under Mississippi Rule of Evidence 404(b) (prohibiting

evidence of prior offenses to show party acted in conformity with

past behavior). The Mississippi Supreme Court held Berry’s claim

procedurally barred because his counsel had not objected to the use

of the statements. Berry II, 703 So.2d at 277.

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 In his state-habeas petition, Berry claimed: counsel was

ineffective for failing to object to either the trial court’s

statements or its sentencing instructions which stated he was a

habitual offender. The state-habeas court held Berry’s claim

unfounded; the resentencing court was merely applying the

Mississippi Supreme Court’s holding in Berry I and, therefore,

there was no basis for an objection. Berry IV, 882 So.2d at 163.

The district court found Berry’s counsel did object twice to

the resentencing court’s use of the words “habitual criminal”, in

both a motion in limine and an oral objection to the instructions,

whereupon the resentencing court made clear it was following the

directives of Berry I. Accordingly, the district court ruled

Berry’s counsel acted reasonably and “owed no duty to continue

objecting”. Berry V, 2006 WL 2865064 at *21.

b.

Concerning the requested COA for the prosecutorial-theatrics

claim, the prosecutor, while stomping on the floor during closing

argument said: “But what did he do, he struck her and struck her

and struck her. He stomped her”. Berry’s counsel objected and

asked that the record reflect the prosecutor was “stomping on the

floor”. The Mississippi Supreme Court held on appeal: while

theatrical, it was difficult to determine the egregiousness of the

prosecution’s demonstration; it was brief and conducted while the

prosecutor was arguing the facts. Berry II, 703 So.2d at 280-81.

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That court held: even though the trial court sustained Berry’s

objections to these theatrics, because counsel subsequently did not

ask the jury to disregard the objectionable behavior, there was no

error, pursuant to state rule. Id.

In his state and federal habeas petitions, Berry raised the

claim as an IAC claim. The state-habeas court denied it, finding

the matter had been considered previously in Berry II and no

prosecutorial misconduct had been found. Berry IV, 882 So.2d at

165. The district court also denied Berry’s claim, holding defense

counsel did object and thus acted reasonably; further objections

might have drawn too much attention to the matter. Berry V, 2006

WL 2865064 at *22.

c.

For relief on either IAC claim, the district court noted,

Berry was required to show the Mississippi Supreme Court’s

application of Strickland was unreasonable under AEDPA. For each

of the two IAC claims for which a COA is requested, reasonable

jurists would not dispute the district court’s holding, under

AEDPA, that counsel’s performance was not deficient; he did object

in both situations to what he felt was prejudicial conduct. E.g.,

Parr v. Quarterman, 472 F.3d 245, 256 (5th Cir. 2006) (holding

counsel’s errors must be so serious that counsel was not

functioning as the “counsel” guaranteed in the Sixth Amendment).

To continue to object on the habitual-offender issue or the

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prosecutorial-theatrics issue would have belabored the point and

might have given it more attention then it was due.

4.

Regarding the four instances of claimed prosecutorial

misconduct at his resentencing trial for which he sought federal

habeas relief, Berry next requests a COA for his claim that the

prosecutor’s seeking the death penalty at the resentencing trial

was for vindictive purposes and, therefore, constituted

prosecutorial misconduct. For his first trial, Berry was offered,

but refused, a lesser sentence which did not include the death

penalty. This offer was not renewed, however, for his resentencing

trial.

Accordingly, prior to that trial, Berry moved to bar the State

from seeking the death penalty. Berry moved the court to enter a

life sentence based upon what counsel alleged to be the arbitrary

application of the death penalty; in support, Berry cited analogous

cases where a plea bargain had been offered the defendant. The

State distinguished those cases, claiming they involved defendants

and victims who were family members. The motion was denied.

On appeal, the Mississippi Supreme Court found Berry proffered

no evidence to show plea bargains were offered to defendants in an

arbitrary manner. The court noted: the prosecutor properly

distinguished the two cases submitted by Berry where plea bargains

were offered; and, moreover, Berry had “no constitutional right to

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a plea bargain”. Berry II, 703 So.2d at 282 (quoting Weatherford

v. Bursey, 429 U.S. 545, 561 (1977)).

Berry raised the claim again in the state-habeas proceeding.

The state-habeas court noted the claim had been already rejected on

appeal in Berry II and, in any event, found the prosecutor’s

conduct did not deprive Berry of a fundamentally fair trial. Berry

IV, 882 So.2d at 166.

In holding the state-court decision on this claim was not

unreasonable under AEDPA, the district court was persuaded by the

State’s claim that it was not required to renew a plea offer that

had previously been rejected once Berry put the State to its proof

and received an adverse result. Berry V, 2006 WL 2865064 at *31.

Therefore, it held: “[I]n [the] light of the discretion afforded

prosecutors and the lack of evidence of arbitrariness”, Berry could

not show a substantial denial of a constitutional right. Id. at

*32.

In seeking a COA for this prosecutorial-misconduct claim,

Berry maintains erroneously that the district court failed to fully

address the claim. As discussed, Berry does not have a

constitutional right to plea bargain. Therefore, as long as the

prosecutor acts

[w]ithin the limits set by the legislature’s
constitutionally valid definition of
chargeable offenses, the conscious exercise of
some selectivity in enforcement is not in
itself a federal constitutional violation so

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 long as the selection was not deliberately
based upon an unjustifiable standard such as
race, religion, or other arbitrary
classification.

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (internal

citations and quotations omitted). For COA purposes, Berry has not

presented any evidence of arbitrariness (or sought to rebut the

manner in which the State distinguished the cases he submitted).

In sum, he fails to satisfy the standard for receiving a COA for

this claim.

5.

Berry’s fifth, and final, COA request concerns the claimed

improper admission at resentencing of 15 photographs and one

videotape of the victim’s body and surrounding crime scene. For

this COA request, Berry contends the district court erred in

denying habeas relief without reviewing this evidence, which he

asserts was used solely to inflame and prejudice the jury. The

federal habeas court was unable to locate the photographs and

videotape because Berry did not provide them for the court’s

review. Berry complains, however, that the evidence was within the

State’s possession and to deny relief based on his inability to

produce it for federal-habeas review was “unconscionable”.

In his appeal from his first trial, Berry presented an

evidentiary challenge to the photographs’ admissibility. The

Mississippi Supreme Court ruled their admission was within the

sound discretion of the trial court. Berry I, 575 So.2d at 10. On

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appeal from Berry’s resentencing trial, the state supreme court

again affirmed the use of the photographs, as well as the

videotape, ruling they were proof of the requisite “heinous”

aggravating circumstances. In addition, although it ruled the

subsequent use of the evidence in closing argument was only to

inflame the jury, it held such conduct was not so prejudicial as to

deny Berry a fair trial, especially given the “wide latitude”

afforded closing arguments. Berry II, 703 So.2d at 277-78.

As noted, the district court was not able to view the evidence

at issue. In any event, it addressed two claims by Berry: the

admission of the evidence was improper; and the prosecutor’s use of

that evidence denied Berry a fair trial. As to admissibility, the

district court held: evidentiary rulings are not cognizable on

federal habeas review, unless a specific constitutional right was

impeded or the ruling rendered the trial fundamentally unfair.

Berry V, 2006 WL 2865064 at *32 (citing Cupit v. Whitley, 28 F.3d

532, 536 (5th Cir. 1994)). Because the evidence was introduced to

supplement an Officer’s testimony regarding the crime scene, they

were held to be relevant and their admission not in error.

Regarding the prosecutor’s use of the evidence during closing

argument, the district court ruled: there was substantial evidence

on which to base its decision; and the use of the such evidence did

not deny Berry a fundamentally fair trial. Id. at *33 (citing

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Smith v. Phillips, 455 U.S. 209, 219 (1982)). Accordingly, it held

the state-court decision was not unreasonable under AEDPA.

Berry does not specifically contest these rulings. Nor does

he state, much less justify, why he did not present the contested

evidence for review by the district court. Moreover, for COA

purposes, he totally fails to show he was denied a fundamentally

fair trial by the admission of the evidence. Therefore, as with

his other COA requests, he fails to show he is entitled to a COA

for this claim.

III.

For the foregoing reasons, a COA is

DENIED.

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