IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-41266

MARK LEROY O’BRYAN, Petitioner-Appellant, versus GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:97-CV-121 -------------------- April 12, 2000 Before REYNALDO G. GARZA , HIGGINBOTHAM, and BENAVIDES, Circuit Judges.

PER CURIAM:* A certificate of appealability was granted to petitioner- appellant Mark Leroy O’Bryan with respect to the issue of whether his trial counsel denied him his right to testify in his own defense at his criminal trial and as to whether the district court erred in denying O’Bryan an evidentiary hearing to develop this claim.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Upon a careful review of the record and the briefs, we AFFIRM the district court’s Order and Final Judgment dated September 25, 1998, denying O’Bryan’s petition for writ of habeas corpus, for essentially the reasons set forth by the magistrate judge and adopted by the district court.

We further find that, as conducting an evidentiary hearing to explore the issue of whether trial counsel refused O’Bryan his right to testify would not have aided the district court in the resolution of his habeas petition, the district court did not abuse it’s discretion in denying O’Bryan’s request for an evidentiary hearing.

Accordingly, the judgment of the district court is AFFIRMED.

AFFIRMED.