IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 02-10133 _____________________

CAMERON TODD WILLINGHAM,

Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee. _________________________________________________________________ ____________________________________

Appeal from the United States District Court for the Northern District of Texas USDC No.: 3:98-CV-409-L _________________________________________________________________ February 17, 2003

Before JOLLY, SMITH, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, CIRCUIT JUDGE:1

Cameron Todd Willingham was convicted of capital murder and

sentenced to death. He seeks a Certificate of Appealability

(“COA”) to appeal the district court’s denial of federal habeas

relief. For the reasons that follow, we DENY a COA.

I

On December 23, 1991, Willingham’s one-year-old twin daughters

and his two-year-old daughter died of smoke inhalation when the

family’s residence burned. Willingham, who escaped the burning

residence, was charged with capital murder of the children. The

1 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. State presented evidence, including Willingham’s confession to an

inmate, that Willingham poured an accelerant on the floor of the

twins’ bedroom, the floor of the hallway outside their bedroom, and

around the front door and lit three separate fires. There was also

evidence that, before setting the fires, he burned his two-year-old

daughter’s arm and forehead so as to make it appear that the fire

was caused by the child playing with fire.

The jury found Willingham guilty of capital murder. He was

sentenced to death based on the jury’s affirmative answer to the

special punishment issue on future dangerousness and its negative

answer to the special punishment issue on mitigating circumstances.

The Texas Court of Criminal Appeals affirmed his conviction and

sentence on direct appeal, and the Supreme Court denied certiorari.

Willingham v. State,

(Tex. Crim. App.), cert.

denied,

(1995).

In December 1996, Willingham filed an application for state

habeas relief. The Texas Court of Criminal Appeals adopted the

trial court’s recommendation that relief be denied, and the Supreme

Court denied certiorari. Ex parte Cameron Todd Willingham, No.

35,162 (Tex. Crim. App. Oct. 1, 1997), cert. denied,

(1998).

Willingham filed a petition for federal habeas relief in April

1998. The magistrate judge recommended that relief be denied. The

district court overruled Willingham’s objections to the magistrate

2 judge’s report and recommendation and denied relief. Willingham v.

Johnson,

(N.D. Tex. Dec. 31, 2001). The district

also denied Willingham’s request for a COA.

II

He has now filed in this court his “Application for

Certificate of Appealability,” in which he lists eight issues: (1)

whether his right to due process was violated when he was denied

the right to represent himself on appeal; (2) whether he received

ineffective assistance of counsel on direct appeal as a result of

his counsel’s failure to raise issues regarding the erroneous

exclusion of several jurors for cause, the improper introduction of

hearsay testimony, and the improper questioning of at least two

witnesses for the State; (3) whether the district court erred by

holding that there was no error in the exclusion of two jurors

based on their beliefs about the death penalty; (4) whether the

district court erred by holding that there was no error in the

trial court’s restriction of Willingham’s questioning of a

prospective juror; (5) whether the district court erred by holding

that hearsay statements made by Willingham’s wife were properly

admissible as impeachment evidence; (6) whether the district court

erred by holding that the opinion testimony of the State’s expert

witness was admissible; (7) whether the Texas death penalty scheme

is unconstitutional because it fails to provide for meaningful

appellate review; and (8) whether Willingham’s rights to due

3 process and equal protection were violated because the jury was not

instructed on the effect that Texas parole law would have on his

sentence. He did not, however, brief issues (3), (4), (5), and (6)

in his brief in support of his COA application (although the

subject matter of these issues is addressed in relation to his

ineffective assistance of counsel claim). Accordingly, we address

only the four COA requests that Willingham briefed. See Hughes v.

Johnson,

(5th Cir. 1999) (issues not raised in

brief in support of COA application are waived), cert. denied,

(2000)

A

Standard of Review

To obtain a COA, Willingham must make “a substantial showing

of the denial of a constitutional right.”

(c)(2).

To make such a showing, he must demonstrate that “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 v. McDaniel,

(2000).

For those claims on which the district court has denied relief on

the merits, Willingham “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional

claims debatable or wrong.”

4 “[T]he determination of whether a COA should issue must be

made by viewing [Willingham]’s arguments through the lens of the

deferential scheme laid out in

(d).” Barrientes v.

Johnson,

(5th Cir. 2000), cert. dismissed,

(2001). When a claim has been adjudicated on the merits

in state court, a federal habeas court must defer to the state

court’s decision unless it “[is] contrary to, or involve[s] an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or ... [is]

based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.”

(d)(1) and (2). A decision is “contrary to ... clearly

established Federal law, as determined by the Supreme Court of the

United States” “if the state court arrives at a conclusion opposite

to that reached by [the Supreme Court] on a question of law or if

the state court decides a case differently than [the Supreme Court]

has on a set of materially indistinguishable facts.” Williams v.

Taylor,

(2000). A decision “involve[s] an

unreasonable application of[] clearly established Federal law, as

determined by the Supreme Court of the United States” “if the state

court identifies the correct governing legal principle from [the

Supreme Court’s] decisions but unreasonably applies that principle

to the facts of the prisoner’s case.”

. The state

court’s factual findings are accorded a presumption of correctness

5 that Willingham may rebut only by “clear and convincing evidence.”

(e)(1).

B

Denial of the Right to Self-Representation

We address first Willingham’s request for a COA for his claim

that his right to due process was violated when he was denied the

right to represent himself on appeal. Willingham’s appointed

counsel filed his brief on direct appeal on January 11, 1993. Five

months later, prior to the filing of the State’s brief, Willingham

filed a motion to strike his appointed counsel’s brief and to

proceed pro se on appeal. In that motion, he asserted that the

brief filed by his appellate counsel did not reflect the true

merits of his case. He did not, however, specify the issues he

wanted to raise. In support of his motion, Willingham submitted an

affidavit in which he indicated his belief that he was able to

prepare a brief and waived his right to the assistance of counsel.

The Court of Criminal Appeals denied Willingham’s motion.

Willingham argues that this violated his constitutional right to

represent himself on appeal.

The state habeas trial court denied relief for this claim on

the ground that Willingham was attempting to use his right of self-

representation to obstruct the orderly procedure in the courts and

the fair administration of justice. See Webb v. State,

(Tex. Crim. App. 1976) (holding that a criminal defendant

6 has the right to represent himself on appeal, but that the “right

of self-representation is not a license to capriciously upset the

appellate timetable or to thwart the orderly and fair

administration of justice”; and declining to rule on appellant’s

pro se motions that were filed long after his appointed counsel had

filed an appellate brief).

The district court denied this claim on the merits, in the

light of Martinez v. Court of Appeal, Fourth Appellate District,

(2000), which was handed down subsequent to the state

habeas court’s ruling. In Martinez, the Supreme Court held that

there is no federal constitutional right to self-representation on

direct appeal from a criminal conviction.

.2

Willingham argues that Martinez does not foreclose his claim,

because Martinez is based on the assumption that states will

consider pro se arguments, in addition to those raised by counsel.

See Martinez,

(observing that “the rules governing

appeals in California, and presumably those in other States as

well, seem to protect the ability of indigent litigants to make pro

2 In Faretta v. California,

(1975), the Supreme Court held that a criminal defendant has a Sixth Amendment right to represent himself at trial. Based on Faretta, our court held in 1993 (seven years prior to Martinez), that a state criminal defendant has a constitutional right to present pro se briefs and motions on appeal. See Myers v. Collins,

(5th Cir. 1993). In the light of Martinez, which held that the Sixth Amendment does not apply to appellate proceedings, and which cited Myers as one of the cases expressing conflicting views on the issue, this aspect of Myers is no longer valid and is thus inapplicable to our resolution of Willingham’s COA request.

7 se filings”). He maintains that, because Texas refuses to consider

pro se arguments in addition to those raised by counsel, he can

still establish a due process violation, notwithstanding Martinez.

The State argues that this claim is foreclosed by Martinez.

It contends further that this claim is barred by the non-

retroactivity doctrine of Teague v. Lane,

(1989). See

Vega v. Johnson,

(5th Cir. 1998) (holding that

Myers created a new rule of constitutional law that was not

applicable on collateral review, and that a rule establishing the

extent and requirements of the right of self-representation on

appeal would be a new rule barred by Teague). Finally, the State

argues that this claim is procedurally barred because the state

habeas court found that Willingham waived his right to self-

representation when he accepted the assistance of counsel, allowed

counsel to file an appellate brief, and then waited at least five

months to assert his wish to proceed pro se.

In the light of Martinez, Willingham cannot demonstrate that

reasonable jurists would find the district court’s assessment of

this claim “debatable or wrong.” See Slack,

.

Notwithstanding its observations about the ability of indigent

litigants to make pro se filings under state appellate rules, the

Supreme Court’s refusal to recognize a due process right to self-

representation on appeal is not conditioned on the appellant’s

ability to make such filings. The imposition of such a condition

8 on collateral review is not permitted under Teague. Accordingly,

Willingham’s request for a COA for this claim is denied.

C

Ineffective Assistance of Counsel on Direct Appeal

Next, we consider Willingham’s request for a COA for his claim

that he received ineffective assistance of counsel on direct

appeal. Willingham’s appointed counsel argued on direct appeal

that: the evidence was insufficient to support the jury’s answers

to the special issues at the punishment phase; the trial court

erred by denying the defense motion to change venue; the trial

court erred in refusing to admit impeachment testimony; and the

trial court erred by refusing to instruct the jury on parole law.

Willingham argues that his appellate counsel rendered ineffective

assistance by failing to argue, in addition, that: (1) the trial

court erred by granting the State’s challenges for cause of

prospective jurors Allen and Ovalle; (2) the trial court erred by

limiting voir dire examination of prospective juror Ovalle; (3) the

trial court erred by admitting hearsay testimony; and (4) the trial

court erred by admitting improper expert testimony.

Willingham’s ineffective assistance claim is governed by the

standard set forth in Strickland v. Washington,

(1984). To obtain a COA for this claim, Willingham must make a

substantial showing that his appellate counsel performed

deficiently and that the deficient performance prejudiced his

9 defense. Prejudice is demonstrated if “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”

.

“A reasonable probability is a probability sufficient to undermine

confidence in the outcome.”

Accordingly, to establish

prejudice, Willingham must show a reasonable probability that he

would have prevailed on his appeal had counsel raised the omitted

claims. Smith v. Robbins,

(2000). The

Constitution does not require an appellate attorney to advance

every conceivable argument, regardless of merit. Evitts v. Lucey,

(1985). Instead, counsel is required to raise

and brief only those issues which are believed by counsel, in the

exercise of professional judgment, to have the best chance of

success. See Jones v. Barnes,

(1983).

We now turn to examine each of the issues that Willingham

contends his counsel should have raised on direct appeal.

1

Exclusion of Jurors for Cause

Willingham seeks a COA for his claim that his appellate

counsel rendered ineffective assistance by failing to argue on

appeal that the trial court erred by granting two of the State’s

challenges for cause during voir dire.

When questioned by the prosecutor, prospective juror Ovalle

testified that she could not vote for the imposition of the death

10 penalty and that this was a firm belief that she had held for a

long time. She stated that, because of her belief, she could not

vote in favor of the death penalty, regardless of what the evidence

might be, and that she would automatically vote against the death

penalty. She testified further that her feelings against the death

penalty were so strong that they would interfere with her ability

to vote to convict someone of capital murder, knowing that she

would later face the decision regarding the death penalty.

Finally, she testified that her views on capital punishment would

substantially impair her duties as a juror and might keep her from

following the court’s instructions. When questioned by defense

counsel, Ovalle stated that she would consider her oath as a juror

to be binding and that, if she took an oath to follow the law, she

would do so. She testified further that she thought she could

answer the special issues based on the evidence, despite her views

about the death penalty. When questioned again by the State,

however, Ovalle reiterated that she could not vote to impose the

death penalty.

Prospective juror Allen also did not believe in capital

punishment. She testified that her belief was based on moral and

religious reasons, that she had strong feelings about the subject,

and that she had never felt differently. She testified that,

because of her beliefs, she would answer the special punishment

issues in such a manner that the death penalty could not be

11 imposed, regardless of the evidence. She agreed that it would be

impossible for her to swear that she would render a verdict solely

on the law and evidence in a case where the death penalty was

involved. She also indicated that her views about the death

penalty would interfere with her ability to render a fair verdict

at the guilt-innocence phase, knowing that she would face the

decision of the death penalty if the defendant were convicted.

When questioned by defense counsel, Allen stated that she thought

she could answer the special punishment issues based on the

evidence, and that she would not intentionally disregard her oath

because of her opposition to the death penalty. When questioned

again by the State, however, Allen stated that she could not base

her verdict on the evidence if it involved the death penalty.

The Supreme Court has held that a prospective juror may be

excused for cause in a capital case when the juror’s views on the

death penalty are such that they “would prevent or substantially

impair the performance of his duties as a juror in accordance with

his instructions and his oath.” Wainwright v. Witt,

(1985) (internal quotation marks and citation omitted). It is

improper, however, to excuse a juror for cause when the juror would

approach a death penalty case with greater care or caution or where

the decision would involve him emotionally. Adams v. Texas,

(1980). Because the trial judge has the opportunity

to see and hear the prospective jurors, we give deference to the

12 trial judge’s credibility determinations. Wainwright,

.

The state habeas trial court denied relief on Willingham’s

claim that the trial court erred by granting the State’s challenges

for cause, observing that the prospective jurors’ responses to

questioning showed that their views on the death penalty would

substantially impair the performance of their duties in accordance

with the court’s instructions and the jurors’ oath. It denied

Willingham’s claim that he received ineffective assistance of

appellate counsel for the same reason.

In assessing the ineffective counsel claim, the district court

held that Willingham was not prejudiced, because there was not a

reasonable probability that the outcome of the appeal would have

been different if his appellate counsel had raised the issue. The

district court’s assessment of this claim is neither debatable nor

wrong, because the state court’s decision is not contrary to

federal law and is not based on an unreasonable application of the

law or an unreasonable determination of the facts. Essentially,

any such claim would have been meritless as an appellate issue.

Both of the prospective jurors stated more than once that, because

of their opposition to the death penalty, they could not render a

verdict based solely on the evidence at trial. Although, when

questioned by defense counsel, both of them said that they thought

they could follow their oaths and answer the punishment issues

13 based on the evidence, they both reiterated, in response to further

questioning by the prosecutor, that they could not vote in such a

way as to impose the death penalty. Because both of the

prospective jurors held views about the death penalty that would

have substantially impaired them in fulfilling their duties as

jurors, the trial court was well within his discretion in granting

the State’s challenges for cause. Accordingly, Willingham cannot

show that he was prejudiced by counsel’s alleged failing: There is

not a reasonable probability that Willingham would have prevailed

on appeal had the issue been raised.

2

Limitation of Voir Dire

Willingham also seeks a COA for his claim that his appellate

counsel rendered ineffective assistance by failing to argue on

appeal that the trial court erred by refusing to allow counsel to

ask prospective juror Ovalle whether, irrespective of her personal

beliefs, she could follow the law and decide the punishment issues

based upon the evidence. He contends that, had counsel been

allowed to ask this question, he could have shown that Ovalle could

answer the questions truthfully based on the evidence and thus

defeat a challenge for cause.

The state habeas trial court rejected this claim on the ground

that Willingham was not prejudiced, because a similar question had

already been asked, answered, and considered by the court. The

14 district court held that, in the light of the fact that defense

counsel had asked Ovalle essentially the same question earlier and

the fact that many of Ovalle’s previous answers to questions

indicated that she could not render a verdict based on the law and

the evidence, the trial court did not abuse its discretion by

refusing to permit Willingham’s counsel to ask the question.

Willingham is not entitled to a COA for this claim because the

district court’s assessment of this claim is neither debatable nor

wrong. Consequently, Willingham has not made a substantial showing

that he was prejudiced by his counsel’s failure to raise this issue

on appeal; there simply is not a reasonable probability that the

outcome of the appeal would have been different had the issue been

raised. As the state habeas court and the district court observed,

the question that defense counsel wanted to ask is duplicative of

similar questions that had already been asked by defense counsel.

3

Hearsay Testimony

Next, Willingham seeks a COA based on the failure of appellate

counsel to argue that the trial court erred by admitting hearsay

evidence at the punishment phase of his trial. The testimony at

issue was introduced to impeach the testimony of Willingham’s wife,

who was called by the State as a hostile witness during the

punishment phase. Willingham’s wife testified that Willingham had

never hurt her or her children, and that her children were not

15 afraid of him. She also denied that she had ever told Karen or Kim

King that Willingham had beaten or kicked her while she was

pregnant in an attempt to cause a miscarriage. She further denied

that Willingham had ever made the statement, after they had

separated, that it would be a good trade if she took their daughter

and he took the videocassette recorder (“VCR”).

Karen King was called by the State to impeach Willingham’s

wife. She testified that she had seen Willingham’s wife with a

“busted” lip, two black eyes, bruised legs, and a red spot on her

stomach. She also testified that Willingham’s wife told her that

Willingham had beaten her and kicked her in the stomach while she

was pregnant because, she believed, he wanted to cause a

miscarriage.

The State also called Kim King as a witness. She testified

that Willingham’s wife had spoken to her about Willingham beating

her while she was pregnant. She testified further that

Willingham’s wife told her that Willingham had stated that he

wanted the VCR and that it would be a fair trade for their oldest

daughter.

The trial court overruled defense counsel’s hearsay objections

to Karen and Kim King’s testimony. The state habeas trial court

held that Willingham failed to present a ground for relief that was

cognizable on habeas review. Furthermore, it held that any error

in admitting the testimony was harmless, because it was more

16 probable than not that the result would have been the same if the

challenged testimony had been excluded. It denied Willingham’s

claim that he received ineffective assistance of appellate counsel

for the same reason. The Texas Court of Criminal Appeals denied

relief, but declined to adopt the trial court’s findings of fact

relating to this claim.

On federal habeas, the magistrate judge stated that Karen

King’s testimony regarding Willingham’s wife’s statement about the

reason she thought Willingham had beaten her while she was pregnant

was hearsay, but that the testimony was admissible to impeach

Willingham’s wife’s testimony that she never made such a statement

to either of the Kings. The magistrate judge noted that

Willingham’s counsel did not request a limiting instruction.

The magistrate judge stated that Karen King’s testimony

regarding Willingham’s statement to his wife about trading the VCR

for his daughter was inadmissible hearsay, because Willingham’s

wife did not deny that she had made such a statement to King.

Instead, she denied that Willingham had ever made the statement to

her. The magistrate judge concluded, however, that, as far as his

ineffective counsel claim was concerned, Willingham was not

prejudiced by counsel’s failure to raise the issue on appeal,

because there was not a reasonable probability that the appellate

court would have found reversible error. Instead, the magistrate

judge concluded that the appellate court would have found the error

17 harmless, because the jury would not have reached a different

decision on punishment had the testimony been excluded. The

magistrate judge reached this conclusion because of the horrific

nature of the crime and the other evidence at the punishment phase

-- including Willingham’s extensive criminal background, his

bragging about killing a dog, the other testimony given by the

Kings regarding Willingham’s wife’s appearance after being beaten

by Willingham, and testimony of a neighbor who witnessed Willingham

slap his wife and who once helped Willingham’s wife call the police

about Willingham’s violence.

The district court held that, even if the State knew before it

called her as a witness, that it would impeach Willingham’s wife’s

denial that she had been abused by Willingham, the State also

elicited testimony from her that did not relate to the abuse.

Accordingly, the district court concluded that the State did not

improperly call Willingham’s wife solely to impeach her. The

district court therefore concluded that the trial court did not err

when it admitted the hearsay statements for impeachment purposes,

and that, as the matter related to his ineffective counsel claim,

there was not a reasonable probability that the outcome of

Willingham’s appeal would have been different if his counsel had

raised the issue. The district court noted that Willingham did not

object to the magistrate judge’s conclusion that he was not

prejudiced by appellate counsel’s failure to appeal the admission

18 of testimony regarding Willingham’s statement that he would trade

his daughter for a VCR. The district court concluded that

Willingham was not prejudiced by the testimony, even if it were

hearsay, because the testimony was insignificant in the light of

other testimony regarding the nature of Willingham’s relationship

with his wife and children.

Willingham is not entitled to a COA for this issue, because

the district court’s assessment of this claim is neither debatable

nor wrong. Willingham has not made a substantial showing that he

was prejudiced by counsel’s failure to raise this issue on direct

appeal.

4

Expert Testimony

The last basis for Willingham’s ineffective assistance of

appellate counsel claim involves counsel’s failure to appeal the

admission of opinion testimony from the State’s arson investigator,

Vasquez. During the guilt phase of trial, Vasquez, a deputy state

fire marshal and arson investigator, was called by the State as an

expert witness. Vasquez testified that, based on the burn patterns

and pour patterns and the stains on the concrete front porch, the

fire was set intentionally with the use of an accelerant. He

testified that he did not believe Willingham’s two-year-old

daughter could have started the fire, because the accelerant liquid

was deliberately poured throughout the hallway and the bedroom, and

19 because the fire was started in three different places. He

testified that Willingham had told him that his daughter had

awakened him while he was sleeping, the bedroom was full of smoke,

he kicked open the door with his bare foot, and he ran down the

hallway and out the door. Vasquez testified that, in his opinion,

Willingham’s story was not true, because Willingham could not have

exited the house after it was on fire and smoke had reached his

bedroom without sustaining injury to his feet or substantial smoke

inhalation damage. Finally, Vasquez testified that it was his

opinion that Willingham started the fire.

Willingham argues that Vasquez’s opinion that Willingham’s

story was “pure fabrication” was improper expert testimony

regarding the ultimate issue in the case. He also argues that

Vasquez was improperly permitted to testify that Willingham

intentionally set the fire.

The state habeas trial court held that any error in admitting

Vasquez’s opinion testimony was harmless. It denied Willingham’s

claim that he received ineffective assistance of appellate counsel

for the same reason. The Texas Court of Criminal Appeals denied

relief, but did not adopt the trial court’s findings of fact

relating to this claim.

The magistrate judge concluded that Vasquez’s testimony that

the fire was intentionally set using an accelerant was proper

expert testimony because that opinion was based on his specialized

20 knowledge about fires and their causes. The magistrate judge also

concluded that Vasquez’s testimony that Willingham fabricated the

story about escaping the fire through the hallway was admissible

opinion testimony. Although it embraced an ultimate issue, it was

not testimony regarding the veracity of a witness, because

Willingham did not testify at trial. Instead, Vasquez testified

that he did not believe Willingham’s story because, based upon his

specialized knowledge, he did not believe that Willingham could

have escaped the burning house without inhaling smoke and

sustaining injuries to his bare feet. Although the magistrate

judge concluded that Vasquez’s opinion testimony regarding

Willingham’s guilt was admitted erroneously with respect to the

ineffective counsel claim, he concluded that the Texas Court of

Criminal Appeals would have found the error to be harmless had the

issue been raised on appeal, considering the substantial

circumstantial evidence of Willingham’s guilt. That evidence

included uncontroverted expert testimony from two fire experts that

an accelerant was used to start the fire intentionally. In

addition, there was testimony that Willingham refused to try to

rescue his children from the fire; that he exhibited a lack of

concern or grief in the hospital after the fire; that he did not

sustain any substantial injuries; that he displayed a carefree

attitude the day after the fire; that he told arson investigators

on the day of the children’s funeral that they might find something

21 on the floor of the twins’ bedroom because he had poured cologne

there prior to the fire; that on the day of the children’s funeral

he sought help from the arson investigators to find his dartboard

in the ruins of his house; and that a container containing traces

of kerosene was found on the porch and a similar petroleum

distillate was found on the wood threshold of the front door.

Moreover, there was testimony that, while in jail awaiting trial,

Willingham confessed to an inmate that he started the fire in order

to hide evidence of recent child abuse. Finally, in addition to

the one inadmissible opinion given by Vasquez, he also gave

admissible opinion testimony that a child could not have set the

fire and that Willingham’s story did not match the physical

evidence and was contradicted by his lack of injuries. The

magistrate judge concluded that because the opinion testimony was

either admissible or harmless, Willingham could not establish any

prejudice as the result of his appellate counsel’s failure to raise

the issue. The district court agreed with the magistrate judge

that Willingham was not prejudiced by his appellate counsel’s

failure to raise the issue on appeal, because any error would have

been harmless in the light of the substantial evidence of

Willingham’s guilt.

Willingham is not entitled to a COA for this issue because the

district court’s assessment of this claim is neither debatable nor

wrong. Even assuming that some of Vasquez’s testimony was admitted

22 erroneously, he cannot establish the second prong of his

ineffective counsel claim: There is not a reasonable probability

that the Texas Court of Criminal Appeals would have found the error

to be prejudicial to the outcome of the case had the issue been

raised on direct appeal.

5

Summary

In sum, Willingham is not entitled to a COA for his claim that

his appellate counsel rendered ineffective assistance. Willingham

has not made a substantial showing that there is a reasonable

probability that counsel’s failure to raise the issues on direct

appeal would have affected the outcome of his appeal.

D

Constitutionality of Texas Death Penalty Statute

Willingham also seeks a COA for his claim that the Texas death

penalty scheme is unconstitutional because the Texas Court of

Criminal Appeals will not review the sufficiency of the evidence

supporting the jury’s answer to the special punishment issue on

mitigating evidence. Willingham argues that this results in the

jury being given unlimited discretion in choosing whether to assess

the death penalty, in violation of the Eighth and Fourteenth

Amendments. Willingham does not deny that this claim is foreclosed

by our precedent, but states that he is raising it to preserve the

opportunity to present the issue to the Supreme Court. See Woods

23 v. Cockrell,

(5th Cir. 2002); Moore v.

Johnson,

(5th Cir. 2000), cert. denied,

(2001).

E

Jury Instruction on Parole

Finally, Willingham requests a COA for his claim that his

constitutional rights were violated by the trial court’s refusal to

instruct the jury that he would be ineligible for parole for

thirty-five years if sentenced to life imprisonment. As Willingham

acknowledges, he is not entitled to a COA for this claim because it

is foreclosed by Fifth Circuit precedent. See Miller v. Johnson,

(5th Cir.), cert. denied,

(2000).

He raises the issue in order to preserve the opportunity to present

it to the Supreme Court.

III

For the foregoing reasons, Willingham’s application for a COA

is

D E N I E D.

24