Wyatt v. Dretke , 165 F. App'x 335 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 31, 2006
Charles R. Fulbruge III
Clerk
No. 04-70051
WILLIAM E. WYATT, JR.,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
(1:01-CV-00212-TH)
Before JONES, Chief Judge, and BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
William E. Wyatt was convicted in Texas state court of capital
murder of a child under the age of six and sentenced to death.
After denying habeas relief on all claims, the district court
granted Wyatt a certificate of appealability (COA) for two issues:
(1) whether the State‘s failure to produce a notebook prepared by
the victim’s mother (after her child’s death) violated due process,
pursuant to Brady v. Maryland, 373 U.S. 83 (1963) (holding
prosecution’s suppression of favorable material evidence violates
*
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this opinion should not be published and is not precedent except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.
due process) (Brady-claim); and (2) whether Ring v. Arizona, 536
U.S. 584 (2002) (holding Sixth Amendment right to jury trial
violated when trial judge determines presence of aggravating
circumstances for imposition of death penalty), is inconsistent
with the prejudice prong for ineffective assistance of counsel
(IAC) under Neal v. Puckett, 286 F.3d 230 (5th Cir. 2002) (en banc)
(holding that, to establish IAC, defendant must satisfy two
elements stated in Strickland v. Washington, 466 U.S. 668 (1984):
(1) counsel’s performance was deficient; and (2) that deficiency
caused prejudice), cert. denied, 537 U.S. 1104 (2003). Wyatt v.
Dretke, No. 1:01-cv-00212 (E.D. Tex. 2004) (USDC Opn.).
In addition, relying on Bush v. Gore, 531 U.S. 98 (2000)
(holding Equal Protection Clause requires uniform and specific
standards for vote counting), Wyatt requests a COA from this court
on a third issue: whether the Texas death penalty statute violates
equal protection because it provides no uniform standards for when
prosecutors should seek that penalty.
For this third issue, a COA is DENIED. For the two issues for
which the district court granted a COA, the denial of habeas relief
is AFFIRMED.
I.
On 4 February 1997, Damien Willis (the child), the three-year-
old son of Wyatt’s then-girlfriend, Renee Porter, with whom Wyatt
lived, was left in Wyatt’s care while Porter was at work. At
2
approximately 6:00 p.m., Wyatt called 911, reporting the child had
accidentally drowned in the bathtub. When emergency personnel
arrived, the child had no pulse, was not breathing, and was cold to
the touch. Paramedics attempted CPR and transported the child to
the hospital, where he was pronounced dead at 7:24 p.m. The
attending physician noted the child was unusually cold (his
temperature was 84 degrees, when approximately 96 would have been
expected) and had bruising on his forehead and thighs and both
fresh and healed injuries to his rectum; and opined that the child
had been sexually assaulted prior to his death. The medical
examiner who performed an autopsy on the child stated that the
cause of death was homicidal violence, including smothering.
Wyatt was taken to the police station, where he signed three
statements over three days. His first statement (4 February)
provided: he was in the laundry room while the child was bathing;
Wyatt returned to the bathroom to find the child underwater; and,
after attempting CPR, he called 911. On 5 February, Wyatt gave a
similar statement, but, acknowledging he had not told the entire
truth previously, confessed to sodomizing the child before he took
a bath. On 6 February, again acknowledging he had not been
completely truthful previously because he was scared, Wyatt stated:
while Porter was at work, the child wanted to take a bath; after
the child began running the bath water, Wyatt saw something on the
television that “made [him] feel like having sex”; Wyatt sodomized
3
the child; Wyatt left the room and returned; believing the child
had lodged something in the light socket, he hit the child with a
belt five or six times; the child began screaming; to stop him,
Wyatt held a plastic bag over his mouth; when the child tried to
jerk away from Wyatt, the child hit his head on the tub; Wyatt left
to get ice for the child’s forehead; when Wyatt returned, the child
was not breathing; and after attempting CPR, Wyatt called 911.
In 1998, Wyatt was found guilty of capital murder of a child
under the age of six, pursuant to TEXAS PENAL CODE ANN. § 19.03(a)(8),
and sentenced to death. The Texas Court of Criminal Appeals
affirmed. Wyatt v. Texas, 23 S.W.3d 18 (Tex. Crim. App. 2000).
Wyatt did not seek review by the Supreme Court of the United
States.
Wyatt sought state habeas relief, raising, inter alia, IAC
claims and a Brady-claim concerning the State’s failure to produce
a hand-written notebook created by Porter after her child’s death
and in preparation for testifying at trial.
The state habeas trial court filed findings of fact and
conclusions of law, recommending denial of relief. Texas v. Wyatt,
97-F-159-005 (Dist. Ct. Bowie County Tex. 2000). That court
concluded, inter alia: Wyatt received effective assistance of
counsel; and his Brady-claim had no merit because there was not a
reasonable probability disclosure of the allegedly suppressed
evidence would have resulted in a different outcome at trial. Id.
4
The Texas Court of Criminal Appeals denied relief. Ex Parte Wyatt,
No. 97-F-159-5-A (2001).
In March 2002, Wyatt requested federal habeas relief,
presenting approximately 20 claims. In December 2003, the district
court awarded summary judgment to the State on all but two of those
claims and ordered an evidentiary hearing for those two: (1)
whether Wyatt’s trial counsel rendered IAC by failing to inform
Wyatt he could testify during the penalty phase; and (2) whether
the cumulative effect of errors by trial counsel constituted IAC.
USDC Opn., 3 Dec. 2003 Order at 5-6, 34 (USDC Opn. I). Following
that hearing, the district court denied habeas relief. USDC Opn.,
18 Oct. 2004 Order at 8 (USDC Opn. II). Wyatt appealed and
requested a COA on six claims; the district court granted a COA for
two issues, encompassing three of the claims. USDC Opn., 9 Dec.
2004 Order at 2 (USDC Opn. III).
II.
Wyatt’s 28 U.S.C. § 2254 habeas petition is subject to the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.
L. No. 104-132, 110 Stat. 1214 (1996). See, e.g., Penry v.
Johnson, 532 U.S. 782, 792 (2001). Wyatt’s COA request is
considered first, followed by the two issues for which the district
court granted a COA.
5
A.
Under AEDPA, Wyatt must obtain a COA from either the district,
or this, court to appeal the denial of habeas relief on an issue.
28 U.S.C. § 2253(c); FED. R. APP. P. 22(b)(1); Slack v. McDaniel, 529
U.S. 473, 478 (2000). To obtain a COA, Wyatt must “ma[k]e a
substantial showing of the denial of a constitutional right”. 28
U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336
(2003); Slack, 529 U.S. at 483. In that regard, Wyatt must
demonstrate “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”. Miller-El, 537 U.S. at
336 (quoting Slack, 529 U.S. at 484).
In deciding whether to grant a COA, a federal court is
limited, inter alia, “to a threshold inquiry into the underlying
merit of [Wyatt’s] claim[]”. Id. at 327. “This threshold inquiry
does not require full consideration of the factual or legal bases
adduced in support of the claim[].” Id. at 336. Instead, our
analysis “requires an overview of the claim[] in the habeas
petition and a general assessment of [its] merits”. Id. This
being a death penalty case, “any doubts as to whether a COA should
issue must be resolved in [Wyatt’s] favor”. Hernandez v. Johnson,
213 F.3d 243, 248 (5th Cir.), cert. denied, 531 U.S. 966 (2000).
6
For purposes of the requisite threshold-inquiry, we are
mindful that, in ruling on the merits, the district court was
required to defer to the state court’s adjudication on questions of
law and mixed questions of law and fact, unless the state court’s
“decision ... was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court”. 28 U.S.C. § 2254(d)(1); Hill v. Johnson, 210
F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001).
That 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), cert. denied, 540 U.S. 1179 (2004).
Likewise, for this threshold-inquiry, we are mindful that, in
ruling on the merits, the district court was required to defer to
the state court’s factual findings unless they “resulted in a
decision that was based on an unreasonable determination of the
facts in [the] light of the evidence presented in the State court
proceeding”. 28 U.S.C. § 2254(d)(2). In that regard, those
findings were “presumed to be correct”; Wyatt had “the burden of
rebutting [that] presumption ... by clear and convincing evidence”.
28 U.S.C. § 2254(e)(1).
7
In the state habeas court, as well as in the district court,
Wyatt claimed the Texas death penalty statute is facially
unconstitutional because it lacks uniform and specific requirements
for when prosecutors should seek the death penalty, resulting in
arbitrary and disparate treatment of similarly situated people.
Finding this claim was presented to, but not addressed by, the
state court, the district court addressed it de novo and held it
barred by the non-retroactivity doctrine of Teague v. Lane, 489
U.S. 288, 301 (1989) (generally barring retroactive application of
new rules of criminal procedure).
In his COA application in district court, however, as in his
application here, Wyatt maintains: Bush v. Gore involved a change
in substantive law and, therefore, his claim is not Teague-barred.
Decided in 2000, Bush v. Gore held the Equal Protection clause
requires uniform and specific standards for vote counting. 531
U.S. 98.
Although it appears Wyatt did not rely upon Bush v. Gore in
district court until his COA request, he did raise the Equal
Protection claim that the district court considered, and rejected,
on habeas review. Accordingly, we will consider Bush v. Gore in
ruling on this COA request.
In deciding whether to grant a COA on this issue, we need not
address a possible Teague-bar because, on its face, the Bush v.
Gore holding is limited to the facts at issue there — the 2000
8
presidential election. Id. at 109. Obviously, those facts are not
remotely similar to those at issue here — the State’s seeking
application of the death penalty for the murder of a three-year-old
child, after the child had been sexually assaulted and abused in
other ways.
For this issue, Wyatt relies almost solely on Bush v. Gore and
does not otherwise demonstrate how, or why, the Texas death-penalty
system violates the Equal Protection Clause. He has not made the
requisite substantial showing of the denial of a constitutional
right. Restated, reasonable jurists could not debate whether the
Texas death penalty statute is unconstitutional under Bush v. Gore
or whether the issue deserves encouragement to proceed further.
B.
For the two issues certified by the district court (Brady-
claim and the procedure for evaluating an IAC claim), we engage in
a merits determination under AEDPA. As discussed, in ruling on the
merits, the district court was required under AEDPA to defer to the
state court’s adjudication on questions of law and mixed questions
of law and fact, unless that “decision ... was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court”. 28 U.S.C. §
2254(d)(1); Hill, 210 F.3d at 485. Again, a state court’s decision
is contrary to clearly established federal law only if it “reaches
a legal conclusion in direct conflict with a prior decision of the
9
Supreme Court or if it reaches a different conclusion than the
Supreme Court based on materially indistinguishable facts”.
Miniel, 339 F.3d at 337.
As also discussed, the district court was required to defer to
the state court’s factual findings unless they “resulted in a
decision that was based on an unreasonable determination of the
facts in [the] light of the evidence presented in the State court
proceeding”. 28 U.S.C. § 2254(d)(2). Again, those findings are
“presumed to be correct”; Wyatt has “the burden of rebutting [that]
presumption ... by clear and convincing evidence”. 28 U.S.C. §
2254(e)(1).
1.
Wyatt sought a COA on whether the State violated his due
process rights under Brady. The district court granted the COA,
however, on whether such claimed suppression “constituted only
harmless error”. USDC Opn. III at 2. Nevertheless, earlier on the
merits, the district court did not perform a harmless error review;
instead, its analysis rested on Brady. It held, somewhat
consistent with the stardard of review imposed by AEDPA, that “the
State court’s denial of this claim was reasonable”. USDC Opn. I at
8. (Again, the standard of review under AEDPA is whether the state
court’s decision was “unreasonable”, not whether, as held by the
district court, it was “reasonable”. Needless to say, different
factors must be considered, as discussed supra.) Like the district
10
court, we review the merits of this claim under Brady. In other
words, concerning the language of the COA, we understand “harmless
error” to mean “not material”, as discussed infra.
Well after Wyatt’s horrific abuse of the child, Porter created
the notebook to aid in preparation for her trial testimony. The
State concedes that, neither before nor during trial, did it
produce the hand-written notebook prepared by Porter, the victim’s
mother. It was neither read, nor otherwise presented, to the jury.
Wyatt’s counsel became aware of the notebook during his
investigation for state habeas relief.
The well-known elements for a Brady-claim are: (1) the
prosecutor suppressed evidence, (2) favorable to the defense, (3)
and material to guilt or punishment. Brady, 373 U.S. at 87.
Evidence is constitutionally material if there is “a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different”. United
States v. Bagley, 473 U.S. 667, 682 (1985) (emphasis added); Miller
v. Dretke, 404 F.3d 908, 913-16 (5th Cir. 2005) (emphasizing
“reasonable probability” element of materiality). This reasonable
probability standard is met if the suppression is significant
enough to undermine confidence in the outcome of the trial. Kyles
v. Whitley, 514 U.S. 419, 434 (requiring demonstration of
reasonable probability that result of proceeding would have
differed had evidence been disclosed).
11
For assessing materiality, vel non, “the Constitution is not
violated every time the government fails or chooses not to disclose
evidence that might prove helpful to the defense”. Id. at 436-37.
Along this line, in determining whether evidence is material for
Brady purposes, we must consider the cumulative effect of all
suppressed evidence, rather than considering each item
individually. Id. “We evaluate the tendency and force of the
undisclosed evidence item by item; there is no other way. We
evaluate its cumulative effect for purposes of materiality
separately ....”. Id. at 437 n.10.
The state habeas court held: because the notebook was not
used before the jury, and because there was no substantial
difference between Porter’s testimony and the notebook, its non-
disclosure did not undermine confidence in the outcome of the
trial. Texas v. Wyatt, 97-F-159-005 (Dist. Ct. Bowie County Tex.
2000).
Although the State did not produce the notebook, the district
court found Wyatt did not satisfy Brady’s suppression prong
because, inter alia, he would have had independent knowledge of the
relevant facts described in it. USDC Opn. I at 8; see West v.
Johnson, 92 F.3d 1385, 1399 (5th Cir. 1996) (holding Brady is not
violated where defendant would have known of allegedly suppressed
evidence), cert. denied, 520 U.S. 1242 (1997). Wyatt claims he
demonstrated the notebook was suppressed for Brady purposes,
12
despite the holding of West, because its value was not in its
content but in its inconsistency with Porter’s testimony, with
which he could have impeached her. Likewise, Wyatt claims Porter’s
unchallenged testimony left the jury with the impression that Wyatt
was indifferent to the child’s death and, therefore, affected the
jury’s determination of guilt.
Because the notebook does not meet the materiality prong of
Brady, as discussed, infra, we need not address whether it was
either suppressed or favorable to Wyatt. (If those prongs were
addressed, it is arguable that, even if the notebook was
suppressed, it was not favorable to Wyatt.) Regarding materiality,
Wyatt points to several notebook entries he claims could have been
used to impeach Porter.
The first contention concerns an entry about “red mark[s]” on
the child, which Porter attributed to Wyatt. Porter testified
these injuries were severe and involved “welts on his legs and his
butt” and bleeding. According to Wyatt, with the notebook, he
could have impeached Porter on the severity of the injuries and
left the jury with the impression she was embellishing, affecting
her credibility. The State maintains the entry, when read in
context, is not significantly different from her testimony. The
notebook stated: “He showed me his butt[.] [There] were a lot more
mark[s] there”. As the state habeas court found, this is not
substantially different from Porter’s testimony.
13
Second, Porter’s notebook reflects that, prior to the day of
the child’s death, Wyatt denied whipping the child when Porter
confronted Wyatt. In her testimony, Porter did not mention Wyatt’s
denial. He claims that, because that testimony went unchallenged,
it left the impression Wyatt admitted causing the child’s injuries.
With the notebook, Wyatt contends he could have presented his
denial and challenged the impression he caused the injuries. The
State responds that Wyatt would have known he denied whipping the
child and, thus, could have used that information to impeach
Porter, even without the notebook. In any event, this omission
provides, at best, minor impeachment value in the light of Wyatt’s
confession to sexually abusing the child. (Additionally, use of
this evidence for impeachment would have been minimal in the light
of the testimony of Porter and David Willis, the child’s father:
both admitted they had each previously beaten the child on at least
one occasion.)
Third, Porter testified that, after leaving the child alone
with Wyatt and coming home to find the child naked and having had
a bowel movement in bed, she noticed he seemed afraid of Wyatt.
For this specific instance, the notebook does not mention that
fear. Wyatt claims: without Porter’s testifying the child seemed
afraid, there would be no inference his bowel movement was a result
of Wyatt’s sodomizing him; and Wyatt could have impeached Porter
for embellishing her trial testimony. The State points to portions
14
of the notebook that record Porter’s noticing a change in the
child’s attitude toward Wyatt and his being afraid of him. For
this point, in the light of these statements taken as a whole, the
notebook would have had no impeachment value.
Fourth, Porter testified she noticed a scratch while giving
the child a bath, and, when she asked the child what happened, he
looked at Wyatt, but Wyatt did not offer an explanation. The
notebook does not mention that. Had he had the notebook, Wyatt
maintains he could have impeached Porter with her failure in the
notebook to mention the scratch and Wyatt’s failure to explain it.
Again, this omission does not rise to the level of an
inconsistency; any impeachment value is minimal.
Fifth, Porter testified to two instances, the day before the
child’s death, when he appeared afraid of Wyatt. The notebook does
not mention either instance. Wyatt maintains that, based on such
non-entries, he would have been able to demonstrate to the jury
that Porter was fabricating her testimony. According to the State,
as for many of the passages in the notebook on which Wyatt relies,
Wyatt was present during the events about which Porter testified;
he would, therefore, have had all the information needed to impeach
Porter if her testimony was false. Again, this omission is not an
inconsistency that provides meaningful impeachment value.
Sixth, Porter testified that, after leaving the child alone
with Wyatt, Porter came home earlier than expected and found
15
Wyatt, with his shirt off, standing at the child’s door. According
to Wyatt, he could have impeached Porter for her failure to mention
this in the notebook. The State again notes Wyatt would have known
if Porter’s description of the facts was untrue, and, if so, could
have impeached her. Wyatt also contends this testimony left
unchallenged the inference Wyatt was about to sexually abuse the
child. In any event, Wyatt confessed that he sexually abused the
child just before his death. In the light of Wyatt’s confession,
this omission has little, if any, impeachment value.
Finally, the notebook does not mention Porter’s impression,
about which she testified at trial, that Wyatt was not upset when
he called her at work to tell her the child was injured (the
injuries from which he died). Wyatt contends he could have used
this omission to demonstrate Porter’s testimony was contrived to
harm Wyatt. As the State points out, however, Porter’s testimony
in this regard was already impeached by testimony of one of the
first officers to respond to Wyatt’s 911 call. That Porter omitted
this from the notebook is of no additional impeachment value.
Having evaluated each notebook entry, or omission, cited by
Wyatt, we now evaluate their cumulative effect for purposes of the
requisite Brady materiality. As discussed, evidence is material
for that purpose only if there is a reasonable probability that,
had the evidence been disclosed, the result would have been
different. Bagley, 473 U.S. at 682. Pursuant to AEDPA, and
16
considering the notebook as a whole, Wyatt has not demonstrated as
unreasonable the state habeas court’s conclusion that the notebook
entries or omissions do not undermine confidence in the jury
verdict.
First, the notebook was written in preparation for Porter’s
trial testimony, well after Wyatt’s abuse of the child. Because it
was not written contemporaneously, the notebook, as a whole, merely
recounted Porter’s memory of the events. If Porter’s testimony was
inconsistent with Wyatt’s memory, he could have impeached Porter
without the use of the notebook. Again, the jury was not aware of
the notebook. It is not as if the jury had it, but Wyatt was not
allowed to question Porter about it.
Furthermore, the notebook does not present any new evidence
that is meaningfully inconsistent with Porter’s trial testimony.
The differences and omissions cited by Wyatt are insignificant in
the light of the record as a whole, especially in the light of
Wyatt’s confessing to having sexually assaulted the child, whipping
him, and covering his face with a plastic bag just prior to his
death.
In sum, Wyatt fails to demonstrate that the state habeas
court’s decision was either “contrary to, or involved an
unreasonable application of, clearly established Federal law” or
“was based on an unreasonable determination of the facts in [the]
light of the evidence presented in the State Court proceeding”.
17
Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir.) (quoting 28 U.S.C.
§ 2254(d)(1),(2); emphasis added), cert. denied, 537 U.S. 953
(2002).
2.
The other certified issue is whether the holding of Ring, 536
U.S. 584, is inconsistent with the analytical framework for IAC
claims under Neal, 286 F.3d 230. Neal relied on Strickland;
therefore, we will analyze this as an IAC claim. (The State
correctly re-phrases the issue as being a Strickland issue.) For
this certified issue, Wyatt presents the substance of two IAC
claims he raised in the state habeas court and the district court.
He maintained his counsel failed to: (1) inform him that he could
testify at sentencing (for which the district court held an
evidentiary hearing); and (2) investigate Wyatt’s military service,
which would have revealed that he was honorably discharged from the
United States Marine Corps.
In denying habeas relief, the state court found Wyatt’s
counsel presented substantial evidence during the punishment phase
of trial and, concluded, as a matter of law, that Wyatt received
effective assistance of counsel during this phase. Texas v. Wyatt,
97-F-159-005 (Dist. Ct. Bowie County Tex. 2000).
After performing a Strickland analysis, the district court
rejected the claims. Concerning the prejudice prong, it concluded:
there was “not a reasonable probability that, had the jury heard
18
Wyatt’s testimony [including about his good military record] during
the punishment phase of his trial, the result of that proceeding
would have been different”. USDC Opn. II at 6. (Pursuant to
AEDPA, however, and as discussed supra, the district court should
have decided whether the state habeas court’s decision was
unreasonable.)
Instead, the district court granted a COA on the narrow issue
of whether the 2004 decision in Ring, 536 U.S. at 609 (holding that
the Sixth Amendment requires the jury, not the judge, to determine
the existence of aggravating circumstances required for imposing
the death penalty) is inconsistent with the framework for IAC
claims employed by our 2002 en banc decision in Neal. As Wyatt did
with his Bush v. Gore COA request, it appears that the IAC claim
based on Ring was not presented until his COA request in district
court. (Needless to say, this is not consistent with the procedure
to be followed under AEDPA.) This notwithstanding, that court
granted a COA on this issue. In the light of that court’s
considering, and granting, a COA on this issue, even though it was
being raised for the first time in the request, we will, dubitante,
consider it here.
As noted, because Neal employs the well-established Strickland
test for IAC claims, we analyze this claim under Strickland. Wyatt
contends: (1) the district court substituted its judgment for that
of the jury, in violation of Ring, when it determined neither
19
instance of ineffective assistance would have resulted in a
different outcome at sentencing; and (2) Ring’s holding is
inconsistent with an appellate court’s applying the Strickland
prejudice analysis by substituting its determinations for those of
the jury.
Wyatt’s claim is without merit. (Because Waytt’s claim is so
lacking, we need not consider whether it is Teague-barred.) Post-
Ring, the Supreme Court reiterated that Strickland articulates the
proper test for IAC claims. Wiggins v. Smith, 539 U.S. 510, 521
(2003). Furthermore, Strickland specifically contemplates review
of aggravating and mitigating factors by appellate courts in death
penalty cases. 466 U.S. at 695.
III.
Wyatt’s request for a COA is DENIED; the denial of habeas
relief is AFFIRMED.
COA DENIED; DENIAL OF HABEAS RELIEF AFFIRMED
20