UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-10708
GREGORY VAN ALSTYNE,
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 (2:97-CV-454) _________________________________________________________________ April 8, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
In opposition to the death sentence imposed in Texas state
court, Gregory Van Alstyne seeks a certificate of appealability
(COA) from the denial of federal habeas relief, claiming
ineffective assistance of counsel (IAC) based on the assertions
that, for the punishment phase, his trial counsel did not: request
psychiatric assistance; secure the attendance of a witness (Van
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Alstyne’s mother); and file a continuance motion (required to be
written and sworn) after that witness did not appear, thus
precluding appellate review of the continuance-denial. COA DENIED.
I.
In April 1990, Van Alstyne and an accomplice ordered food to
be delivered to the apartment of an acquaintance; they requested
that the delivery man bring sufficient cash to change a $50 bill;
and they were informed he would not carry that much cash. When the
man arrived with the food, Van Alstyne attacked him; ordered his
accomplice to open the victim’s vehicle; and threw him into the
back seat.
The accomplice drove the vehicle to a deserted field, while
Van Alstyne continued to beat and stab the victim. He pleaded for
his life until he lost consciousness. Van Alstyne crushed the
victim’s skull with a stone, and stabbed him in the stomach and
neck. The victim died from loss of blood. Van Alstyne and his
accomplice robbed him of the food and the approximate $20.00 in
cash that he was carrying. Van Alstyne and his accomplice
abandoned the victim’s car; when they returned to the
acquaintance’s apartment, Van Alstyne bragged about the murder.
In 1992, Van Alstyne was convicted of capital murder; based on
the jury’s answers to the special issues, he was sentenced to
death. On direct appeal, the Texas Court of Criminal Appeals
affirmed the conviction and sentence. Van Alstyne v. State, No.
2 71,500 (Tex. Crim. App. 7 June 1995) (unpublished). No petition
for a writ of certiorari was filed with the Supreme Court of the
United States.
In 1996, Van Alstyne filed his initial state post-conviction
habeas application. The state trial court recommended denial. Ex
Parte Van Alstyne, No. 30,941-B (47th Dist. Ct. for Potter County,
Tex. 9 Apr. 1997) (unpublished). Relief was denied by the Texas
Court of Criminal Appeals. Ex Parte Van Alstyne, No. 33-801-01
(Tex. Crim. App. 4 June 1997) (unpublished).
Van Alstyne filed for federal habeas relief in 1997. In a
report and recommendation, the magistrate judge recommended denial.
Van Alstyne v. Johnson, No. 2:97-CV-0454 (N.D. Tex. 16 Mar. 2001)
(unpublished) (Van Alstyne-USDC). Van Alstyne filed objections to
the report and recommendation; by a March 2001 order, the district
court, after an independent review of the record, overruled the
objections, adopted the report and recommendation, and denied
relief. Id.
The magistrate judge construed Van Alstyne’s notice of appeal
as a COA request, but recommended denial. Van Alstyne v. Johnson,
No. 2:97-CV-0454 (N.D. Tex. 5 June 2001) (unpublished). The
district court adopted the recommendation. Id.
II.
At issue is whether Van Alstyne is entitled to a COA premised
on his punishment phase IAC claim. He makes this claim on three
3 independent bases, on his trial counsel’s not: (1) requesting
psychiatric assistance; (2) securing the attendance of a witness
(his mother); and (3) filing a sworn continuance motion after that
witness did not appear, precluding appellate review of the
continuance-denial.
The Antiterrorism Effective Death Penalty Act (AEDPA) applies,
because Van Alstyne’s federal petition was filed after AEDPA’s
April 1996 effective date. See Lindh v. Murphy, 521 U.S. 320, 336
(1997). Under AEDPA, Van Alstyne must be granted a COA in order to
appeal the habeas-denial. 28 U.S.C. § 2253(c)(1)(A).
A COA may issue only upon “a substantial showing of the denial
of a constitutional right”. 28 U.S.C. § 2253(c)(2). To meet this
standard, Van Alstyne must show “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, 529 U.S. 473, 484 (2000) (citation and internal
quotation marks omitted).
When a claim is denied on the merits, Van Alstyne must
demonstrate “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong”. Id.
(COA-merits-standard) For a denial of relief on procedural
grounds, Van Alstyne must show that “jurists of reason would find
it debatable whether the petition states a valid claim of the
4 denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its
procedural ruling”. Id. (emphasis added) (COA-procedural-
standard).
The ruling on whether a COA should issue “must be made by
viewing ... [Van Alstyne]’s arguments through the lens of the
deferential scheme laid out in 28 U.S.C. § 2254(d)”. Barrientes v.
Johnson, 221 F.3d 741, 772 (5th Cir. 2000), cert. dismissed, 531
U.S. 1134 (2001). Under that scheme, a federal habeas court must
defer to the decision of a state court where it has adjudicated a
claim on the merits, unless the state court’s decision is “contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States; or ... resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding”. 28 U.S.C. § 2254(d)(1)
& (2).
A state court 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 th[e] Court on a question of law or if the state
court decides a case differently than th[e] Court has on a set of
materially indistinguishable facts”. Williams v. Taylor, 529 U.S.
362, 412-13 (2000). A state court decision “involve[s] an
5 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
th[e] Court’s decisions but unreasonably applies that principle to
the facts of the prisoner’s case”. Id.
For these questions, as well as whether the state court
decision was based on an unreasonable determination of the facts in
the light of the evidence presented in the state court proceeding,
we must presume the state court’s findings of fact correct unless
that presumption is rebutted by “clear and convincing evidence”.
28 U.S.C. § 2254(e)(1).
For the COA-merits-standard for each of the three claimed
independent bases for IAC, Van Alstyne must address both parts of
the well-known IAC test: (1) whether counsel’s performance was
deficient in that it “fell below an objective standard of
reasonableness”; and (2) whether the deficient performance resulted
in prejudice — “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different”. Strickland v. Washington, 466 U.S. 668, 687-88, 694
(1984).
A.
At the punishment phase, evidence of future dangerousness (the
second special issue) included Van Alstyne’s having been
incarcerated for attempted robbery and having been released only
6 seven days before the murder at issue. Van Alstyne’s counsel
sought to mitigate Van Alstyne’s behavior by stressing mental
problems he experienced, arising out of traumas in his life.
Concerning trial counsel’s not requesting psychiatric
assistance for use in the punishment phase, the state habeas court
found that, prior to trial and by court order, Dr. Shaw conducted
a psychiatric examination of Van Alstyne and concluded he was
mentally competent to stand trial. (The examination revealed that
Van Alstyne was not suffering from a mental illness or defect, but
that he could be classified as having a mixed personality disorder
with antisocial traits.) The state habeas court ultimately
concluded: Van Alstyne’s counsel’s not requesting another
psychiatric examination was not deficient performance and not
making such a request did not prejudice Van Alstyne.
In denying habeas relief on this point, the district court
agreed with the state court that counsel’s performance was not
deficient, and that the decision was sound trial strategy. Van
Alstyne-USDC, at 10. The district court also ruled that Van
Alstyne had failed to show prejudice. Id. at 11. Accordingly, it
concluded that the state court decision was neither contrary to,
nor an unreasonable application of, federal law and that its
findings of fact were not unreasonable. Id. at 11-12.
7 1.
8 To meet the COA-merits-standard, Van Alstyne contends his
counsel knew, or should have known, that mitigating evidence
regarding an alleged mental illness existed; and that, as a result,
counsel was deficient in not seeking psychiatric assistance. The
cited evidence is: (1) records of the Texas Panhandle Mental
Health Authority, dated September 1988, two years prior to the
murder, that relate to Van Alstyne’s two visits to a mental health
facility; and (2) the facts about which his mother would have
testified.
The mental facility records reflect the following. On his
first visit, Van Alstyne reported that, while drinking, he became
angry, got into a disagreement with his brother-in-law, and cut
himself; Van Alstyne was discharged; and the facility’s assessment
was that Van Alstyne had no significant mental abnormalities, and
his behavioral symptoms resulted from intoxication. On his second
visit, Van Alstyne complained that he was afraid of himself and,
the night before, had a compulsion to kill himself; he admitted he
drank heavily almost every night; and he was diagnosed with an
alcohol abuse problem and a generalized anxiety disorder with
probable panic episodes.
Concerning Van Alstyne’s mother, she stated in a post-trial
affidavit (supporting a new trial motion) that she would have
testified, inter alia, to the following: (1) Van Alstyne was born
prematurely, with the umbilical cord wrapped around his neck; (2)
9 when he was young, he was run over by a vehicle, with a resulting
change in his behavior and personality; (3) he was struck by
lightning and “his mental condition seemed to worsen”; (4) his
school performance was deficient; (5) he was physically abused by
his father; (6) he did not walk until he was two years old and did
not speak clearly until he was four years old; and (7) before he
was 17 years old, he began drinking rice wine, often getting drunk
and into trouble.
After reviewing the mental health facility records and the
mother’s proposed testimony, as well as the affidavit of Van
Alstyne’s trial counsel, the district court stated:
[T]he record from the trial and the state habeas proceeding establishes that, at the most, petitioner’s trial counsel were aware prior to trial that petitioner had some accidents as a child, was considered a slow learner, and had been diagnosed as having an alcohol dependency problem, an anxiety disorder evidently brought on by excessive drinking, and an antisocial personality disorder. Further, one of petitioner’s trial counsel ... has submitted an affidavit in which he states that he and his co-counsel ... discussed obtaining a psychiatric expert to assist the defense at trial, but determined the potential harm in having petitioner examined exceeded any potential benefit. Given the lack of any diagnosis that suggested [Van Alstyne] suffered from a mental illness, trial counsel’s decision not to seek a psychiatric examination that might further indicate petitioner had an antisocial personality disorder was a reasonable strategic trial preparation decision.
Furthermore, the State did not offer any psychiatric testimony at the punishment phase
10 of the trial as evidence that petitioner would be a future danger to society. Had defense counsel requested the assistance of a psychiatrist, however, they would have run the risk that the State would have presented its own psychiatric testimony to rebut the defense’s evidence.
Van Alsytne-USDC, at 9-10 (internal citation omitted; emphasis
added). Accordingly, the district court determined that, in the
light of this, it was reasonable trial strategy not to seek
psychiatric assistance as there was no diagnosis of a mental
disorder, and any psychological examination could have been
potentially more harmful than helpful.
Van Alstyne claims he satisfies the COA-merits-standard for
this holding, claiming it is erroneous because it represents the
view expressed in two decisions rendered post-trial: Lagrone v.
State, 942 S.W.2d 602, 610-11 (Tex. Crim. App.) (allowing “trial
courts to order criminal defendants to submit to a state-sponsored
psychiatric exam on future dangerousness when the defense
introduces, or plans to introduce, its own future dangerousness
expert testimony” (emphasis in original)), cert. denied, 522 U.S.
917 (1997); and Soria v. State, 933 S.W.2d 46, 57-58 (Tex. Crim.
App. 1996) (“when the defendant initiates a psychiatric examination
and based thereon presents psychiatric testimony on the issue of
future dangerousness, the trial court may compel an examination of
11 [the defendant] by an expert of the State’s or court’s choosing”),
cert. denied, 520 U.S. 1253 (1997).
The district court did not cite either of these cases.
Nevertheless, Van Alstyne asserts that, under the law at the time
of his trial, it would have been error for the trial court to have
required Van Alstyne to submit to an examination by the State’s
expert as a condition of Van Alstyne’s offering psychological
testimony. For this assertion, Van Alstyne relies on Bradford v.
State, 873 S.W.2d 15, 20 (Tex. Crim. App. 1993), overruled by
Soria, 933 S.W.2d at 59 n.21.
Bradford held:
[T]he trial court’s action in making the admissibility of portions of [the defense expert’s] proffered [psychological] testimony contingent upon [the defendant’s] submitting to an examination by a State-selected expert was erroneous and such violated the Sixth Amendment to the United States Constitution. And under these circumstances the admission of [the State’s expert’s] testimony based upon his examination of [the defendant] violated [the defendant’s] right against self- incrimination.
873 S.W.2d at 20.
Van Alstyne’s trial took place in 1992; therefore, counsel did
not have the benefit of Bradford (1993). Van Alstyne contends,
however, that “Bradford cited several [pre-trial] cases dating back
to 1986 which supported this view”. Bradford relied upon three
cases.
12 First, it cited Bennett v. State, 742 S.W.2d 664, 671 (Tex.
Crim. App. 1987), vacated, 486 U.S. 1051 (1988), for the holding
that a trial court does not “have the authority to appoint a
psychiatrist for the purpose of examining a defendant for evidence
relating solely to his future dangerousness”.
Second, both Bradford and Bennett cited McKay v. State, 707
S.W.2d 23, 38 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 871
(1986), which held: where there was no issue as to either the
defendant’s competency to stand trial or his sanity when the
offense was committed, the State could not have the defendant
examined solely on the future dangerousness issue. McKay also
held: “[E]ven if [the defendant] had been examined, he could have
prevented the State from using the evidence obtained by claiming
his Fifth Amendment right against self-incrimination”. Id.
Hernandez v. State, 805 S.W.2d 409 (Tex. Crim. App. 1990),
cert. denied, 500 U.S. 960 (1991), is the last of the three
referenced cases cited by Bradford. Hernandez held: when the
defendant elicited testimony on cross-examination of the physician
that conducted defendant’s competency exam that tended to show
defendant suffered from paranoid schizophrenia, the defense
“‘opened the door’” to the State’s questioning the physician on re-
direct to establish the defendant suffered instead from an anti-
social personality disorder. Id. at 412. Hernandez also observed
that, although the physician did not do so, the physician was
13 prohibited from expressing an opinion on the defendant’s future
dangerousness. Id.
With the stage set by Bradford, and these three pre-Bradford
cases referenced by Van Alstyne, at issue is whether the decision
not to seek psychiatric assistance because of the potential harm of
its revealing potentially damaging evidence was reasonable trial
strategy. Regarding a strategic decision not to investigate
certain evidence, Strickland held:
[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.
466 U.S. at 691 (emphasis added).
Our court has held that counsel makes a reasonable strategic
decision when he does not introduce mitigating character evidence
that would open the door to other, more damaging, evidence.
Williams v. Collins, 16 F.3d 626, 632 (5th Cir.), cert. denied, 512
U.S. 1289 (1994). Williams also held that counsel was not
ineffective in not requesting a psychiatric examination of the
defendant where counsel made a “knowing, strategic decision not to
seek a psychiatric evaluation of [the defendant] because [counsel]
feared the state would use rebuttal psychiatric testimony of [the
defendant’s] future dangerousness”. Id. at 634. The conviction in
14 Williams occurred in Texas; Williams was decided after Bradford
(1993), but before Soria (1996).
As stated, Van Alstyne’s counsel did not have the benefit of
the now-overruled Bradford plurality decision. In addition, while
the cases relied upon by Bradford make it clear that, absent
evidence proffered by a defendant of his mental status, the State
cannot compel a psychiatric exam to investigate solely for evidence
of future dangerousness, these cases do not signal the eventual
Bradford holding that a defendant’s proffered psychiatric testimony
does not subject him to an examination by the State.
Accordingly, based upon the law at the time of Van Alstyne’s
trial, reasonable jurists would not find debatable the district
court’s holding that his counsel made a reasonable strategic
decision not to seek expert psychiatric assistance because of the
danger that any offered psychiatric testimony could have triggered
the State’s ability to offer potentially more harmful evidence. He
has further failed to satisfy the COA-merits-standard because, even
if the State could not have compelled its own examination, it is
certainly possible that, in rebuttal, the State could have used the
results of the exam by Van Alstyne’s own expert to show future
dangerousness; even Bradford does not prohibit such action.
b.
Even if reasonable jurists could debate whether counsel’s
strategic decisions were based upon an erroneous view of the law,
15 such error, alone, “does not give rise to a constitutional
ineffectiveness claim”, so long as the decision “was a conscious
and informed tactical one”. Green v. Johnson, 116 F.3d 1115, 1122
(5th Cir. 1997) (internal quotation marks omitted). Van Alstyne
has not shown that this decision was not conscious and informed.
Moreover, trial counsel’s affidavit reveals this decision was made
after “disagreement among the trial team as to this issue”.
To the extent Van Alstyne contends counsel should have
requested the expert psychiatric assistance and then, based upon
the results, decided whether to offer that expert testimony, he
still has not satisfied the COA-merits-standard, especially in the
light of counsel’s fears that any psychiatric testimony would be
rebutted by more damaging evidence, and no indication in the mental
facility records or his mother’s proposed testimony of Van
Alstyne’s ever having been diagnosed with a mental illness.
2.
Even assuming arguendo Van Alstyne has satisfied the COA-
merits-standard for deficient performance, he has not satisfied it
for the requisite prejudice. As the district court stated:
While [Van Alstyne] had some behavior problems several years earlier due to excessive drinking, there was no evidence at trial, nor is there any evidence or documentation now before the Court, that [Van Alstyne] has ever suffered from any mental illness.... Without any such evidence, it cannot be said that [Van Alstyne] was prejudiced by defense counsel’s
16 decision not to use psychiatric testimony at the punishment phase....
Van Alstyne-USDC, at 11 (emphasis added).
Van Alstyne next claims counsel were ineffective in failing to
secure the attendance of his mother, a resident of the Philippines,
as a witness at the punishment phase. The trial court had agreed
to pay her air fare and had written the United States embassy in
Manila that she had very important mitigating evidence for the
trial.
1.
The district court ruled that Van Alstyne had procedurally
defaulted on this claim. Van Alstyne-USDC, at 12-13. Procedural
default occurs where “the petitioner fails to exhaust all available
state remedies, and the state court to which he would be required
to petition would now find the claims procedurally barred”.
Bledsue v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999).
After reviewing Van Alstyne’s state habeas petition, the
district court determined that, although Van Alstyne had alleged
IAC based on counsel’s not requesting psychiatric assistance and
not filing a sworn continuance motion after his mother did not
appear to testify, Van Alstyne did not claim counsel were
ineffective in failing to secure his mother’s attendance. In fact,
in his state habeas petition, Van Alstyne stated: “At the hearing,
the evidence was undisputed that [his mother’s] absence was in no
17 way due to the negligence of [Van Alstyne’s] counsel and that
counsel had used due diligence in attempting to get her to trial”.
(Emphasis added.)
The district court also concluded that, if Van Alstyne
attempted to assert this claim in Texas courts through a subsequent
habeas petition, he would be barred from doing so. Van Alstyne-
USDC, at 13. Under Texas law, a court may consider the merits of
a subsequent habeas application only if it is established that:
(1) the current claims and issues have not been and could not have been presented previously in a timely initial application ... because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;
(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or
(3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state’s favor one or more of the special issues that were submitted to the jury....
TEX. CRIM. PROC. CODE ANN. art. 11.071, § 5(a) (Vernon Supp. 2002).
(Although Van Alstyne can avoid the procedural bar by, for example,
showing cause and prejudice for failing in his state habeas
application to raise this unexhausted claim, see Jones v. Johnson,
171 F.3d 270, 277 (5th Cir.), cert. denied, 527 U.S. 1059 (1999),
he makes no attempt to do so.)
Van Alstyne fails to satisfy the COA-procedural-standard.
18 2.
Although the district court was not required to do so, it also
addressed the merits of this claim. See 28 U.S.C. § 2254(b)(2)
(petition may be denied on the merits even if state remedies not
exhausted). It concluded there was neither deficient performance
nor prejudice.
Concerning deficient performance vel non, the district court
ruled that Van Alstyne’s mother’s failure to appear was not the
result of counsel’s performance, but was instead caused by
logistical problems.
Along this line, the district court noted that the state trial
court coordinator working to secure the mother’s presence testified
that the defense investigator “had used due diligence and ‘every
effort’ to attempt to obtain the presence of [Van Alstyne’s] mother
at the trial”. Van Alstyne-USDC, at 14. It also noted the mother
stated in her affidavit that: she could not obtain a travel visa
until there was a definite entry and exit date; the dates were not
established until the month before trial; and she encountered
difficulties in meeting with personnel in the American Embassy in
the Philippines to receive approval for her travel to the United
States. Id.
Van Alstyne has not shown reasonable jurists would debate that
his mother’s absence can be attributed to his counsel.
19 Accordingly, he has not satisfied the COA-merits-standard for
claimed deficient performance.
Concerning prejudice vel non, the district court ruled that
the mother’s testimony would have been cumulative of that of other
witnesses, except for her proposed testimony regarding Van
Alstyne’s being hit by a vehicle and struck by lightning; and that
Van Alstyne had presented no evidence that those accidents resulted
in psychological damage other than that already testified to at
trial — that he was a slow learner. (For example, Van Alstyne’s
uncle, who traveled to the trial from Africa, testified about the
physical abuse Van Alstyne suffered at a very young age from his
father.)
Van Alstyne maintains this ruling was incorrect, claiming
prejudice because “the mere appearance by [his] mother to speak on
behalf of her son and explain to the jury what his life was like
and to take some amount of responsibility for him would have been
powerful evidence, and perhaps the only hope [he] had to avoid a
death sentence”. Such an assertion is speculation. Van Alstyne
has not satisfied the COA-merits-standard concerning whether
prejudice resulted from his mother’s not testifying.
C.
In his third, and final, claimed basis for IAC, Van Alstyne
maintains counsel were ineffective for making an oral, rather than
20 the required written and sworn, continuance motion after his mother
did not arrive, thereby preventing review on direct appeal of the
trial court’s denial of the motion. See TEX. CRIM. PROC. CODE ANN.
art. 29.03 & 29.08 (Vernon 1989) (“criminal action may be continued
on the written motion of the State or of the defendant”; “[a]ll
motions for continuance must be sworn”).
In any event, the state habeas court rejected this IAC claim.
It ruled that, at the time of the continuance hearing, and because
Van Alstyne’s counsel “had never talked with [Van Alstyne’s] mother
and had ‘no way of knowing’ whether the defense would want to call
her as a witness”, there was no basis for the trial court to grant
a continuance. As a result, the state habeas court concluded
counsel were not ineffective in not preserving this issue for
review.
The district court ruled that, assuming arguendo counsel’s
performance was deficient for not filing the motion, Van Alstyne
still had not shown prejudice. Van Alstyne-USDC, at 18-20.
According to the district court, had the continuance-denial been
preserved for review by the Texas appellate courts, the denial
would have been affirmed. It based this on the fact that, at the
time counsel so moved (orally), there was no evidence before the
trial court that the mother would testify to anything material or
beneficial, because, as stated earlier, much of what she testified
to would have been cumulative of the testimony of other witnesses.
21 Id. at 19-20. See Gentry v. State, 770 S.W.2d 780, 786-88 (Tex.
Crim. App. 1988) (to be entitled to a continuance the “expected
testimony has to be material to the defendant”), cert. denied, 490
U.S. 1102 (1989).
Furthermore, the district court observed that the trial court
did not have the benefit of the mother’s affidavit when ruling on
the motion. Van Alstyne-USDC, at 19. (As noted supra, it was
filed subsequently with the new trial motion.) Therefore, the
district court concluded that the trial court would not have been
found to have abused its discretion in denying the motion. Id.
See Duhamel v. State, 717 S.W.2d 80, 83 (Tex. Crim. App. 1986)
(“granting or denial of a motion for continuance is within the
sound discretion of the trial court”), cert. denied, 480 U.S. 926
(1987).
Van Alstyne does not address the district court’s ruling that
he has not shown that, on direct appeal, the Texas court would have
reversed the continuance-denial. “We have held repeatedly that we
will not consider issues not briefed by the parties.” Johnson v.
Sawyer, 120 F.3d 1307, 1315 (5th Cir. 1997). See McKethan v. Tex.
Farm Bureau, 996 F.2d 734, 739 n.9 (5th Cir. 1993) (failure to
sufficiently brief issue constitutes a waiver of that issue), cert.
denied, 510 U.S. 1046 (1994).
In any event, Van Alstyne has failed to satisfy the COA-
merits-standard.
22 III.
For the foregoing reasons, a COA is
DENIED.