O'Bryan v. Johnson

* 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that this opinion should not be published and is not precedent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.
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.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:97-CV-121
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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.
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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.

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