Foster v. Quarterman

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
March 13, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 05-70016
KENNETH EUGENE FOSTER,
Petitioner-Appellee-Cross-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellant-Cross-Appellee.
Appeal from the United States District Court
for the Western District of Texas
(SA-02-CA-301-RF)
Before JONES, Chief Judge, and BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Kenneth Eugene Foster was convicted in Texas state court of
capital murder during the course of a robbery and sentenced to
death. The district court granted conditional relief for Foster’s
federal–habeas claims that his sentence is unconstitutional under
the Eighth Amendment and Enmund v. Florida, 458 U.S. 782, 797-800
(1982), because the jury did not make the requisite factual
determination. For Foster’s remaining 11 claims, the court denied

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both relief and a certificate of appealability (COA). See 28 U.S.C.
§§ 2253, 2254.
The State appeals the conditional habeas-grant; Foster seeks
a COA in order to appeal on two jury-charge claims: (1) the jury
should not have been instructed on conspiracy because he was not
indicted for that crime; and (2) the trial court erred in refusing
a lesser-included–offense instruction.
A COA is DENIED. A subsequent opinion will address the
State’s appeal from conditional habeas relief’s being granted.
I.
On the evening of 14 August 1996, Foster and three others –
Mauriceo Brown, DeWayne Dillard, and Julius Steen – embarked on
armed robberies around San Antonio, Texas, beginning with Brown’s
announcing he had a gun and asking whether the others wanted to rob
people: “I have the strap, do you all want to jack?”. During the
guilt/innocence phase of Foster’s trial, Steen testified that he
rode in the front seat, looking for potential victims, while Foster
drove. Steen and Brown both testified to robbing two different
groups at gunpoint; the four men divided the stolen property
equally.
The criminal conduct continued into the early hours of the
next day (15 August), when Foster began following a vehicle driven
by Mary Patrick. At trial, Patrick testified as follows: she and
Michael LaHood, Jr. were returning in separate cars to his house;

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she arrived and noticed Foster’s vehicle turn around at the end of
the street and stop in front of Michael LaHood’s house; Patrick
approached Foster’s car to ascertain who was following her; she
briefly spoke to the men in the vehicle, then walked away towards
Michael LaHood, who had reached the house and exited his vehicle;
she saw a man with a scarf across his face and a gun in his hand
exit Foster’s vehicle and approach her and Michael LaHood; Michael
LaHood told her to go inside the house, and she ran towards the
door, but tripped and fell; she looked back and saw the gunman
pointing a gun at Michael LaHood’s face, demanding his keys, money,
and wallet; Michael LaHood responded that Patrick had the keys; and
Patrick heard a loud bang. Michael LaHood died from a gunshot
wound to the head. The barrel of the gun was no more than six
inches from Michael LaHood’s head when he was shot; it was likely
closer than that. Brown had similarly stuck his gun in the faces
of some of the nights’ earlier robbery victims.
Later that day, all four men were arrested; each gave a
written statement to police identifying Brown as the shooter. In
admitting being the shooter, Brown denied intent to kill. At
trial, he testified that he approached Michael LaHood to obtain
Patrick’s telephone number and only drew his weapon when he saw
what appeared to be a gun on Michael LaHood and heard what sounded
to him like the click of an automatic weapon.

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In May 1997, Foster and Brown were tried jointly for capital
murder committed in the course of a robbery. The jury found each
guilty of that charge and answered the special issues at the
penalty phase to impose a death sentence for each.
On direct appeal, Foster contended, inter alia: application
of Texas Penal Code § 7.02(b) (conspiracy party liability) violated
the Sixth and Fourteenth Amendments to the Constitution; and the
trial court erred in refusing a jury instruction on the lesser-
included offense of aggravated robbery. The Court of Criminal
Appeals affirmed Foster’s conviction and sentence, holding, inter
alia: a law–of–the–parties instruction under § 7.02(b) is
appropriate when no such charge is in the indictment because the
statute describes attempt to carry out, not the offense of,
conspiracy; and a lesser-included–offense instruction was not
warranted because nothing in the record would permit a rational
jury to find Foster guilty only of aggravated robbery and not
murder in the course of a robbery. See Foster v. State, No. 72,853
(Tex. Crim. App. 30 June 1999) (unpublished) (TCCA Opn.). Three
judges dissented, and would have held, inter alia, that Foster was
entitled to a lesser–included–offense instruction. Id. at 33
(Mansfield, J., dissenting). The Supreme Court of the United
States denied a writ of certiorari. Foster v. Texas, 529 U.S. 1057
(2000).

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In April 1999, prior to the conclusion of his direct appeal,
Foster filed for state–habeas relief. Foster did not present his
§ 7.02(b) or lesser-included–offense claims because they had been
raised on direct appeal. See Ex parte Torres, 943 S.W.2d 469, 475
(Tex. Crim. App. 1997) (en banc) (“Generally, a claim which was
previously raised and rejected on direct appeal is not cognizable
on habeas corpus.”).
After holding evidentiary hearings, the state habeas court
issued findings of fact and conclusions of law, recommending denial
of relief; the Court of Criminal Appeals denied relief in an
unpublished order. Ex Parte Foster, No. 50,823-01 (Tex. Crim. App.
6 Mar. 2002). The Supreme Court again denied a writ of certiorari.
Foster v. Texas, 537 U.S. 901 (2002).
Foster presented 14 claims in his federal habeas petition. On
3 March 2005, the district court ruled on the State’s summary
judgment motion, granting conditional relief as to sentencing for
three claims and denying relief, as well as a COA, for the
remaining 11. See Foster v. Dretke, No. SA-02-CA-301-RF, 2005 U.S.
Dist. LEXIS 13862 (S.D. Tex. 3 Mar. 2005) (USDC Opn.).
On 4 April 2005, Foster filed a notice of appeal and, even
though the district court had denied sua sponte a COA on all claims
for which it had denied relief, applied in district court for a COA
on the § 702(b) conspiracy–liability issue. The State appealed the
conditional habeas-grant on 7 April. On 11 April, the district

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court denied a COA on the § 702(b) claim raised in Foster’s COA
application and also denied a COA on “[t]he implicit request” for
a COA on the lesser–included–offense issue contained in Foster’s
notice of appeal. On 18 April, Foster requested a COA from our
court on those two claims.
II.
Foster’s 28 U.S.C. § 2254 habeas petition is subject to the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214 (1996) (AEDPA). See, e.g., Penry v.
Johnson, 532 U.S. 782, 792 (2001). Under AEDPA, Foster may not
appeal the denial of habeas relief on an issue unless he first
obtains a COA from either the district, or this, court. 28 U.S.C.
§ 2253(c); FED. R. APP. P. 22(b)(1); Slack v. McDaniel, 529 U.S.
473, 478 (2000). Under Federal Rule of Appellate Procedure
22(b)(1), the district court must first decide whether to grant a
COA before one can be requested here. As noted, the district court
twice denied a COA for the two claims for which Foster requests a
COA here.
Obtaining a COA requires “a substantial showing of the denial
of a constitutional right”. 28 U.S.C. § 2253(c)(2); e.g.,
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack, 529 U.S. at
483. For that requisite showing, Foster must demonstrate
“reasonable jurists could debate whether (or, for that matter,
agree that) the [federal habeas] petition should have been resolved

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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 determining whether to
grant a COA, this court is, inter alia, limited “to a threshold
inquiry into the underlying merit of [Foster’s] claims”. Id. at
327. “This threshold inquiry does not require full consideration
of the factual or legal bases adduced in support of the claims.”
Id. at 336. Instead, the court must make “an overview of the
claims in the habeas petition and a general assessment of their
merits”. Id. Because Foster was convicted of capital murder and
received the death penalty, “any doubts as to whether a COA should
issue must be resolved in [his] favor”. Hernandez v. Johnson, 213
F.3d 243, 248 (5th Cir.), cert. denied, 531 U.S. 966 (2000).
For purposes of the mandated threshold inquiry, we recognize
that, in ruling on the merits, the district court was required by
AEDPA to defer, with limited exceptions, to the state court’s
resolution of Foster’s claims. The exceptions provided by AEDPA
turn on the character of the state court’s ruling.
First, such deference is mandated both for questions of law
and for 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 of the United States”. 28 U.S.C. § 2254(d)(1);
see Hill v. Johnson, 210 F.3d 481, 488 (5th Cir. 2000), cert.

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denied, 532 U.S. 1039 (2001). A state court’s decision is
“contrary to clearly established federal law” under § 2254(d)(1)
“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).
Second, such deference is required for the state court’s
“decision [unless it] 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). On the merits,
pursuant to AEDPA, the state court’s factual findings are presumed
correct; in district court, Foster had “the burden of rebutting
[that] presumption ... by clear and convincing evidence”. 28
U.S.C. § 2254(e)(1).
This threshold inquiry is considered against the elements for
Foster’s claims. Again, it is but one of the procedures mandated
by AEDPA for deciding whether a COA should be granted.
A.
Having raised the claim at trial, on direct appeal, and in his
federal habeas petition, Foster seeks a COA for his claim that the
trial court’s instructing the jury under § 7.02(b) (conspiracy
party liability) at the guilt/innocence phase violated his right to
adequate information of the charges against him because the

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indictment did not charge conspiracy. Instead, it charged Foster
with “intentionally and knowingly caus[ing] the death of an
individual, namely: MICHAEL LaHOOD, Jr. ... by SHOOTING the said
MICHAEL LaHOOD JR. WITH A DEADLY WEAPON, NAMELY: A FIREARM, and ...
intentionally caus[ing] the death of ... MICHAEL LaHOOD ... while
in the course of committing and attempting to commit the offense of
ROBBERY upon ... MICHAEL LaHOOD”. The jury charge, inter alia,
defined conspiracy under Texas law and described, under Texas’ law
of the parties, the two theories of liability under which Foster,
as the driver, could be guilty of capital murder for Brown’s
shooting Michael LaHood: §§ 7.02(a) and 7.02(b), described infra.
Over Foster’s objection, the jury was instructed to find
Foster guilty of capital murder if it found Brown intentionally
killed Michael LaHood in the course of robbing, or attempting to
rob, him and also found:
[1] from the evidence beyond a reasonable
doubt that ... Foster, acting with the intent
to promote or assist in the commission of the
offense of capital murder, did encourage, aid,
or attempt to aid, ... Brown in the commission
of the offense, by driving the car
(the § 7.02(a) instruction), or
[2] though [Foster] may have had no intent to
commit the offense [of capital murder] ... [he
nevertheless] entered into a conspiracy, as
herein defined, with ... Brown and/or [the
other passengers in the car] to commit the
offense [of] robbery, and ... in an attempt to
carry out this conspiracy, if any, ... Brown
did ... intentionally cause the death of
Michael LaHood ... while in the course of

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committing or attempt[ing] to commit robbery,
if such offense was committed in furtherance
of the unlawful purpose to commit robbery, and
was an offense that should have been
anticipated as a result of the carrying out of
the conspiracy if any
(the § 7.02(b) instruction) (emphasis added). Concerning this
instruction, Foster objected at trial that, inter alia, “conspiracy
is alleged as a separate offense in the penal code”.
Foster does not contend the indictment failed to provide
notice that he would be tried under the § 7.02(a) instruction.
Instead, as he does here, Foster contended, both on direct appeal
and for federal habeas relief, that the § 7.02(b) instruction
allowed him to be tried for conspiracy, a crime not charged in the
indictment, in violation of his Sixth, through the Fourteenth,
Amendment right to fair notice of the charges against him. See,
e.g., Jackson v. Virginia, 443 U.S. 307, 314 (1979) (holding due
process violated when conviction based on charge not made or
tried).
On direct appeal, the Court of Criminal Appeals declined “to
accept [Foster’s] invitation” to overturn its decision in Montoya
v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989), cert. denied,
502 U.S. 961 (1991). The court ruled that its decision in Montoya
held, in direct contradiction to Foster’s contentions, that a §
7.02(b) instruction did not instruct as to a separate offense of
conspiracy, but defined “how an actor can be held criminally

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responsible for an offense committed by another when the actor does
not have the specific intent to carry out that offense”. TCCA Opn.
at 23 (footnotes omitted). The Court of Criminal Appeals held
Foster had ample notice he was being charged under a party-
liability theory because he knew Brown admitted shooting Michael
LaHood.
On federal habeas review, the district court held Foster had
not shown the state–court decision “was ... contrary to, or
involved an unreasonable application of, clearly established
Federal law”. USDC Opn. at *57 (quoting 28 U.S.C. § 2254(d)(1)).
In the light of several of our own decisions upholding a Texas
capital-murder conviction using a § 7.02(b) law–of–the–parties
instruction, see, e.g., Montoya v. Scott, 65 F.3d 405, 415 (5th
Cir. 1995), cert. denied, 517 U.S. 1133 (1996); Jacobs v. Scott, 31
F.3d 1319, 1329 (5th Cir. 1994), cert. denied, 513 U.S. 1067
(1995), the district court held there was no federal legal
principle prohibiting a conviction for capital murder under a
party-liability theory. Further, the district court concluded
that, even if such a principle existed, its application to Foster’s
case would be precluded under the non-retroactivity principle
announced in Teague v. Lane, 489 U.S. 288, 310 (1989).
In his COA application here, Foster reiterates the contentions
made to the state and district courts: the § 7.02(b) instruction
is “wholly dependent upon the actor’s guilt under Section 15.02 of

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the Penal Code” (defining the inchoate crime of conspiracy) and
“introduce[s] a new and different crime [(conspiracy)] from that
... alleged in the indictment” (murder); and § 7.02(b) may only be
used to hold one charged with conspiracy liable for other felonies
committed by co-conspirators in the course of the planned crime.
In this regard, Foster contends Jacobs, 31 F.3d at 1329, wrongly
held it was not error to first indict a defendant as a principal
and then convict using the § 7.02(b) instruction.
The State responds by pointing to consistent Texas and federal
precedent holding that, as a matter of state law, a jury can
convict a defendant for capital murder using the § 7.02(b)
instruction, even though the defendant was not indicted for
conspiracy. See Montoya, 65 F.3d at 415; Jacobs, 31 F.3d at 1329;
Montoya, 810 S.W.2d at 165; Flores v. State, 681 S.W.2d 94, 97-98
(Tex. App. 1984), aff’d, 690 S.W.2d 281 (Tex. Crim. App. 1985) (en
banc); English v. State, 592 S.W.2d 949, 955 (Tex. Crim. App.),
cert. denied, 449 U.S. 891 (1980).
The State further contends the jury was never permitted to
convict Foster for conspiracy; the § 7.02(b) instruction “merely
stated the extent to which co-defendants may be held jointly
responsible under Texas law”. Foster knew Brown admitted to being
the shooter; therefore, when Foster was indicted as a principal, he
was necessarily on notice that the State would attempt to convict

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him on a theory of party liability. The State also asserts Teague
prohibits Foster’s § 7.02(b) claim.
For COA purposes, as on the merits, we are bound by our
precedent. Pursuant to the AEDPA standard for whether to grant a
COA, and in the light of controlling state and federal precedent,
reasonable jurists would not debate that, under AEDPA, the district
court concluded correctly that: (1) the state court’s rejection of
Foster’s § 7.02(b) claim was not contrary to, or an unreasonable
application of, federal law, Slack, 529 U.S. at 478; and (2) this
claim is not “adequate to deserve encouragement to proceed
further”, id. at 484 (internal quotation omitted). (Because we
deny a COA for the foregoing reasons, we need not address the
Teague issue.)
B.
For his other COA request, having raised the claim at trial,
on direct appeal, and in his federal habeas petition, Foster
maintains he was entitled to a jury instruction on the lesser-
included offense of aggravated robbery.
The trial court refused that instruction because, inter alia,
there was no evidence Michael LaHood’s death was the result of an
unintentional killing. On direct appeal, the Court of Criminal
Appeals held no evidence could support a finding that, if Foster
was guilty, he was guilty only of aggravated robbery. The court
applied Texas’ two-part test for determining whether a lesser-

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included–offense instruction is warranted: “(1) [whether] the
lesser-included offense is included within the proof necessary to
establish the offense charged; and (2) [whether] some evidence
exists in the record that would permit a jury to rationally find
that[,] if the defendant is guilty, he is guilty only of the lesser
offense”. TCCA Opn. at 25 (emphasis added).
The court denied Foster relief on this direct–appeal claim
because: (1) in statements to police (that were read to the jury),
Foster denied participating in the earlier armed robberies; (2)
Steen, one of the four persons in the vehicle Foster drove,
testified he thought Brown was going to rob Michael LaHood when he
saw Brown get out of the vehicle; (3) Patrick (who was meeting the
victim at his house) and Steen both testified they heard Brown
demand Michael LaHood’s keys and wallet before shooting him; (4)
Foster knew Brown had a gun and had brandished it in the robberies
a few hours earlier; (5) Steen testified he thought there was a
real possibility someone might die that night; (6) Foster drove the
car, had a vote in the criminal behavior, and shared in the
proceeds from the robberies; (7) instead of driving away after the
shooting, Foster waited in the car for Brown; and (8) after Michael
LaHood was murdered, Foster encouraged Brown to get rid of the gun.
In addition, the court noted that the night began with Brown
announcing he had a gun and asking whether the others wanted to
commit robberies.

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The court also stated: the nature of armed robbery suggests
someone must give up his money or his life; such conduct
necessarily raises the chance someone will be killed; the earlier
robberies not having resulted in death in no way assisted Foster;
and, because the final armed robbery resulted in Michael LaHood’s
death, no reasonable jury could find Foster guilty only of
aggravated robbery. As noted supra, three judges dissented.
In rejecting Foster’s federal–habeas claim, the district court
recited the following well-settled rule: “[A] capital murder
defendant is constitutionally entitled to an instruction on a
lesser-included offense if the evidence would permit a jury
rationally to find the defendant guilty of the lesser offense and
acquit him of the greater”. USDC Opn. at *58 (emphasis added).
The district court ruled that, under AEDPA, the Court of Criminal
Appeals neither unreasonably applied the above constitutional
principle nor unreasonably determined the facts in the light of the
evidence.
The district court independently reviewed the record before
finding substantial, unchallenged evidence demonstrating Foster
pursued Patrick and Michael LaHood to allow his co–conspirators to
commit another robbery. The court relied on the fact that,
regardless of whether Foster intended that Brown only rob Michael
LaHood, he died from a gunshot wound inflicted during an attempted
robbery by Foster’s co–conspirator. The court held: because

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“Foster’s guilt relie[d] exclusively on his role as a co-
conspirator, it is impossible ... for any rational jury to separate
LaHood’s fatal shooting from Brown’s attempted armed robbery of
LaHood”. Id. at *60-61.
In his COA application here, Foster claims “[t]he facts of
this case fairly raise the lesser-included” aggravated–robbery
instruction because his liability was based “solely on his role in
the robbery”; thus, because a jury could have made “the rational
inference that [Foster’s] criminal liability was limited to
robbery, either as a party or a conspirator” (emphasis added), the
trial court should have given the aggravated–robbery instruction;
because that instruction was refused, the jury was faced with the
all-or–nothing choice between conviction of capital murder and
acquittal, as forbidden by Hopper v. Evans, 456 U.S. 605, 609
(1982), and Beck v. Alabama, 447 U.S. 625 (1980). In addition,
Foster claims not allowing the jury to consider whether he
participated in the robberies, but did not participate in Brown’s
surprising murder of Michael LaHood, violated the Beck rule – that,
in a capital case, where evidence would support a verdict on a
lesser–included noncapital offense, the jury must be instructed on
that lesser–included offense, Beck, 447 U.S. at 627-29. Foster
contends: essentially, the Court of Criminal Appeals and the
district court held any participant in any way in a robbery that

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results in a murder is guilty of capital murder; and this rationale
improperly reduces a jury’s ability to limit liability to robbery.
The State responds: (1) the jury was not presented with the
Beck all-or-nothing dilemma because, although, during the
guilt/innocence phase, the jury chose between conviction and
acquittal, unlike the statutory scheme in Beck (mandating the death
penalty if guilty), during the sentencing phase, it chose between
life imprisonment and death; and (2) the evidence would not have
permitted a rational jury to convict Foster of aggravated robbery
but not felony murder. The State notes also that Texas law
requires trial courts to give an instruction regarding a lesser-
included offense if: “(1) the lesser-included offense is included
within the proof necessary to establish the offense charged, and
(2) some evidence necessarily exists on the record that would
permit a jury to rationally find that the defendant is guilty only
of the lesser offense”. (Emphasis in original.)
Further, the State claims: to convict Foster, the jury had to
find he “was ‘criminally responsible’ for Brown’s actions, or that
the crime was committed while attempting to carry out a conspiracy
to commit a felony”; and Foster’s claim that the state and district
court rulings attach capital–murder liability to every participant
in every robbery is incorrect because Foster never admitted to, or
claimed, he took part in the robberies. Thus, according to the
State, Beck is distinguishable, because there, the defendant

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admitted participating in a robbery but denied killing, or
intending to kill, the murder victim.
In addition, the State contends: had the jury credited
Brown’s testimony or Foster’s statements given to police shortly
after his arrest and read to the jury, it would have acquitted
Foster, not convicted him of aggravated robbery. Thus, the State
asserts, Foster was not entitled to a lesser-included–offense
instruction because he: (1) willingly participated in the
robberies; (2) agreed on the selection of the victims; (3)
collected proceeds from the robberies; and (4) was with someone
using a gun to intimidate and protect. Finally, the State claims
that a lesser-included aggravated–robbery instruction could have
harmed Foster by increasing the chance the jury would have
convicted him of something rather than acquitting him.
As the district court opinion stated, a capital defendant is
constitutionally entitled to a jury instruction on a lesser-
included offense if the evidence would allow a rational jury to
convict on the lesser charge and acquit on the greater. Hopper,
456 U.S. at 611-12 (holding due process requires lesser-included
instruction only when evidence supports the instruction); Beck, 447
U.S. at 637-38 (holding state statute unconstitutional when it
prohibited lesser-included instructions in capital cases); Cordova
v. Lynaugh, 838 F.2d 764, 767 (5th Cir.), cert. denied, 486 U.S.
1061 (1988).

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Beck’s fundamental concern is that, given the choice only
between acquittal and conviction for capital murder, a jury may
vote to convict simply to keep the defendant off the street, even
if not convinced beyond a reasonable doubt that the defendant
committed capital murder. Schad v. Arizona, 501 U.S. 624 (1991).
A lesser–included–offense instruction, however, is not
constitutionally required in every case; it is only required when
warranted by the evidence.
As the district court stated: “Foster’s guilt relies
exclusively on his role as a co-conspirator”. USDC Opn. at *60-61.
Therefore, it is impossible to separate Foster’s guilt from Brown’s
conduct, which included killing Michael LaHood while attempting to
commit a robbery. In denying a pre–AEDPA certificate of probable
cause required for an appeal by a state prisoner (essentially the
same standard as for an AEDPA COA), our court held a capital–murder
defendant is not entitled to an aggravated–robbery instruction when
no evidence suggests the defendant “participated in a robbery or
attempted robbery but withdrew or somehow disassociated himself
from the murder[]”. Ransom v. Johnson, 126 F.3d 716, 726 (5th
Cir.), cert. denied, 522 U.S. 944 (1997). Likewise, there is no
evidence Foster participated in the robberies but withdrew or
disassociated himself from the murder of Michael LaHood.
In sum, pursuant to the AEDPA standard for whether to grant a
COA, reasonable jurists would not find the district court’s holding

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on this issue debatable or wrong. See Slack, 529 U.S. at 478. The
same is true for its finding the issue did not deserve
encouragement to proceed further. Id. at 484.
III.
For the foregoing reasons, a COA is DENIED. A subsequent
opinion will address the State’s appeal from conditional habeas
relief’s being granted.
COA DENIED

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