IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 11, 2009

                                       No. 09-70007                    Charles R. Fulbruge III
                                                                               Clerk

PETER ANTHONY CANTU,

                                                   Petitioner - Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent - Appellee




                   Appeal from the United States District Court
                    for the Southern District of Texas, Houston
                                 No. 4:07-CV-3016


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Petitioner Peter Anthony Cantu, a Texas inmate, was convicted of capital
murder and sentenced to death. After unsuccessfully appealing his conviction
in state court and failing to obtain state post-conviction relief, Cantu filed a
petition for habeas corpus in the United Stated District Court for the Southern
District of Texas. In a thorough and well-reasoned memorandum and order, the
district court denied habeas relief and, sua sponte, declined to issue a certificate


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 09-70007

of appealability on any of the issues raised by Cantu. Pursuant to 28 U.S.C.
§ 2253(c), Cantu now seeks from this court a certificate of appealability. For the
following reasons, we deny a certificate of appealability on all of the issues that
he raises.
             I. FACTUAL AND PROCEDURAL BACKGROUND
      In 1994, a Texas jury convicted Peter Cantu of capital murder and
sentenced him to death for the murder of Jennifer Ertman. While a complete
account of the facts is available in the district court’s memorandum and order
denying Cantu’s federal habeas petition, we briefly summarize the grisly details
that led to Cantu’s conviction. On June 24, 1993, Cantu and other members of
the Black and White gang met to initiate a new member. After the initiation
concluded, two girls—Jennifer Ertman and Elizabeth Pena—stumbled upon the
group. Members of the gang, including Cantu, then began a vicious sexual
assault of the girls. After the assault, the gang took the girls into the woods and
strangled them. At one point, Cantu kicked Ms. Pena in the face with his steel-
toed boot. He and other gang members also stood on the girls’ necks to ensure
they died. Once dead, the girls’ bodies were left in the woods, and the gang
members proceeded to Cantu’s home, where they bragged of their crime to
Cantu’s brother and sister-in-law. Days later, Cantu’s brother and sister-in-law
reported what they had heard to the police. The police were then able to find the
badly decomposed remains of Ms. Ertman and Ms. Pena. All of the participants
were then arrested, and, while in custody, Cantu provided two written
statements to the police. In the first statement, Cantu only admitted his role in
raping and stealing from the girls, but he was silent as to their murder. After
police informed Cantu that one of the other participants fully confessed, Cantu
gave his second statement, in which he described how both girls were killed.
      The Texas Court of Criminal Appeals affirmed Cantu’s conviction in a
direct appeal on January 29, 1997. Cantu v. State, 

(Tex. Crim.

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App. 1997). Cantu then sought state post-conviction relief. The state trial court
denied such relief on June 7, 2006, after it adopted the prosecution’s proposed
findings of fact and conclusions of law. On December 13, 2006, the Texas Court
of Criminal Appeals likewise denied Cantu’s state habeas application after it
adopted the trial court’s findings of fact and conclusions of law in an unpublished
order. Ex parte Cantu, No. 65,334-01 (Tex. Crim. App. Dec. 13, 2006).
      Cantu then filed a habeas petition in the United Stated District Court for
the Southern District of Texas. On February 4, 2009, the district court denied
habeas relief in a particularly thoughtful and thorough memorandum and order.
Cantu v. Quarterman, No. H-07-CV-3016, 

(S.D. Tex. Feb. 4,
2009).   Additionally, the district court denied a certificate of appealability
(“COA”), sua sponte, on all of the issues raised by Cantu.
      Now, Cantu seeks a COA on five of the issues he raised below. For the
following reasons, we decline to issue a COA on any of those issues.
                        II. STANDARD OF REVIEW
      The Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires
a petitioner to obtain a COA in order to appeal the district court’s denial of his
habeas petition.   28 U.S.C. § 2253(c)(1).    We may issue a COA only if the
petitioner makes “a substantial showing of the denial of a constitutional right.”

“A petitioner satisfies this standard by demonstrating that
jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,

, 327 (2003). Whether to grant a COA is a “threshold inquiry” that
involves “an overview of the claims in the habeas petition and a general
assessment of their merits” but “does not require full consideration of the factual
or legal bases adduced in support of the claims.” 

That said, we
resolve any doubts as to whether a COA should issue in the petitioner’s favor

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when the death penalty is involved. Johnson v. Quarterman, 

, 285
(5th Cir. 2007).
       Because our analysis involves a review of the district court’s resolution of
Cantu’s constitutional claims, we must take account of the deferential lens
through which the district court evaluated those claims. Under AEDPA, habeas
relief is unavailable on any claim adjudicated on the merits in state court unless
the state court’s adjudication (1) “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or (2) “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).
With the circumscribed nature of our review in mind, we now turn to the merits
of Cantu’s petition.
                                  III. DISCUSSION
       Cantu seeks a COA on five issues: (1) whether due process requires the
state trial court to inform the jury that, if sentenced to life in prison instead of
death, Cantu would be eligible for parole after thirty-five years; (2) whether the
district court’s determination not to instruct the jury on lesser-included offenses
violated the Eighth Amendment; (3) whether the way Texas places mitigating
evidence before the jury violates the Eighth Amendment;1 (4) whether Cantu
was rendered ineffective assistance of counsel because his trial counsel did not
object on due process grounds to the trial court’s admitting photographs that
depicted the victims’ bodies and the crime scene; and (5) whether Cantu was
rendered ineffective assistance because his trial counsel did not object to the


       1
        Below, Cantu additionally argued that the prosecution’s sentencing-phase argument
improperly limited the jury’s consideration of mitigating evidence; however, he has conceded
that argument in his present petition and, so far as his mitigation argument is concerned,
seeks a COA only on whether Texas’s method of presenting mitigation evidence to the jury is
unconstitutional.

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                                     No. 09-70007

prosecution’s sentencing-phase argument urging the jury to consider those
photographs.
A.       Parole Eligibility
         Cantu first argues that the state trial court’s refusal to inform the jury of
Texas parole law violates the Fourteenth Amendment’s Due Process Clause.
Specifically, Cantu challenges the trial court’s preventing him from informing
the jury that, based on Texas law at the time, he would be eligible for parole in
thirty-five years were he sentenced to life in prison as opposed to death. At
bottom, Cantu urges this court to extend the holding in Simmons v. South
Carolina, 

(1994), to the circumstances in this case. We decline to
do so.
         In concluding that the state court did not unreasonably apply clearly
established federal law, the district court explained Simmons’s limited
holding—that “when ‘the alternative sentence to death is life without parole . . .
due process plainly requires that [the defendant] be allowed to bring [parole
ineligibility] to the jury’s attention.’” Cantu, 

, at *6 (quoting

) (omission and alterations in original). The district
court highlighted that the Supreme Court has itself refused to extend Simmons’s
holding beyond “when, assuming the jury fixes the sentence at life, the
defendant is ineligible for parole under state law.” Ramdass v. Angelone, 

, 166 (2000) (emphasis added). Indeed, this circuit has repeatedly
refused to apply Simmons so as to require that Texas juries be informed of a
defendant’s future parole eligibility. See, e.g., Thacker v. Dretke, 

,
617 (5th Cir. 2005); Elizalde v. Dretke, 

, 332–33 (5th Cir. 2004);
Woods v. Cockrell, 

, 361 (5th Cir. 2002). Thus, reasonable jurists
would not—and have not—disagreed with the district court’s resolution of this
claim, and we deny a COA as to this issue.



                                           5
                                      No. 09-70007

B.     Lesser-Included Offenses
       Second, Cantu asserts that the Eighth Amendment’s proscription of cruel
and unusual punishment was violated by the trial court’s refusal during the
guilt–innocence phase to instruct the jury on three lesser-included offenses:
sexual assault, robbery, and kidnapping.2 Cantu bases his claim on the Supreme
Court’s decision in Beck v. Alabama, 

(1980).
       The Supreme Court held in Beck “that a state cannot impose a blanket ban
on lesser-included-offense instructions in capital cases. Subsequent decisions by
this court have consistently held that a state trial court may not, under Beck,
refuse a lesser-included-offense instruction ‘if the jury could rationally acquit on
the capital crime and convict for the noncapital crime.’” East v. Scott, 

, 1005 (5th Cir. 1995) (internal citation omitted) (quoting Cordova v.
Lynaugh, 

, 767 (5th Cir. 1988)); see also Aguilar v. Dretke, 

, 531 (5th Cir. 2005). While this standard may be met if the evidence would
permit a finding contrary to that establishing Cantu’s participation in the actual
murders, see 

, our “interpretation of Beck requires a trial
court judge to consider all of the evidence in the case as a whole in determining
whether a rational jury could have found the defendant not guilty of capital
murder but guilty of a lesser-included offense,” Campbell v. Dretke, 117 F. App’x
946, 952 (5th Cir. 2004) (emphasis added); cf. United States v. Branch, 

, 713 (5th Cir. 1996) (in discussing the amount of evidence that is sufficient
to require an instruction on self defense, the court considered Beck and other
cases addressing lesser-included-offense instructions and stated that “it is not
enough that an item of evidence viewed alone and unweighed against all the
evidence supports” the instruction sought by the defendant). Cantu’s assertion,


       2
         Cantu additionally argued to the district court that he was entitled to a lesser-
included instruction on simple murder; however, he does not argue that he is entitled to such
an instruction in his petition for COA.

                                             6
                                   No. 09-70007

however, invites us to look only at a single item of evidence and to ignore all of
the remaining evidence in the case.
      Cantu contends that a rational jury could look only at his first written
statement—in which he admitted to kidnapping, robbing, and sexually
assaulting the girls but omitted any mention of killing them—and convict him
of only the lesser-included crimes. The district court, as did the state court,
placed Cantu’s first statement into the context of all the record evidence and
determined that a rational jury would not have concluded that Cantu was guilty
only of the lesser-included offenses. To the extent Cantu’s reliance on his first
statement requires disbelieving his second statement in which he admitted to
the killings, he failed to produce significant evidence calling the legitimacy of his
second statement into question: he showed no constitutional or statutory
violation in the taking of the statement, and he offered no trial testimony
challenging the accuracy of his second statement. Further, the overwhelming
balance of evidence adduced at trial corroborated Cantu’s second statement: (1)
Roman Sandoval, a fellow gang member, stated that Cantu called him and
confessed to the murders; (2) additional gang members stated that they were
“following whatever Peter Cantu was doing”; (3) Venancia Medellin, a gang
member, testified that after he raped Ms. Ertman, Cantu whispered in his ear
that “[w]e’re going to have to kill them,” and that Cantu then directed the gang
to bring the girls into the woods; and (4) while some of the gang members,
including Cantu, recounted the events of that evening to Cantu’s older brother
Joe and his wife Christina, one gang member described how Cantu “kicked one
of the girls in the face with his steel toe[] [boots]” while Cantu commented that
“[t]he bitch wouldn’t die so I stomped on her neck” and that the girls “had to die
[so] they couldn’t identify them.”
      Based on all of this evidence, the state court determined that a reasonable
jury would not acquit Cantu of capital murder and convict him of the lesser-

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                                   No. 09-70007

included offenses. The district court determined that this conclusion was not an
unreasonable application of federal law. In light of the district court’s thorough
analysis, we cannot say that reasonable jurists would disagree with that
determination and, therefore, deny a COA on this issue.
C.    Texas’s Mitigating Evidence Instruction
      Cantu next asserts that the method by which the Texas Code of Criminal
Procedure presents the issue of mitigating evidence to a sentencing jury
improperly prevents the consideration of constitutionally relevant evidence. The
district court concluded that the state court’s rejection of this argument was not
an unreasonable application of federal law, and we conclude that reasonable
jurists would not disagree with that determination.
      Texas presents the question of mitigating evidence to a jury through
article 37.071, sections 2(e)(1) and 2(f)(4) of the Texas Code of Criminal
Procedure. At the time of Cantu’s trial, § 2(e)(1) stated:
      The court shall instruct the jury that if the jury returns an
      affirmative finding to each issue submitted under Subsection (b), it
      shall answer the following issue:
               Whether, taking into consideration all of the evidence,
               including the circumstances of the offense, the
               defendant’s character and background, and the
               personal moral culpability of the defendant, there is a
               sufficient mitigating circumstance or circumstances to
               warrant that a sentence of life imprisonment rather
               than a death sentence be imposed.
T EX. C ODE C RIM. P ROC. art. 37.071, § 2(e)(1) (1991). Section 2(f)(4) stated:
      The court shall charge the jury that in answering the issue
      submitted under Subsection (e) of this article, the jury:
      *    *      *
      shall consider mitigating evidence to be evidence that a juror might
      regard as reducing the defendant’s moral blameworthiness.




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                                  No. 09-70007

Contrary to Cantu’s argument, we have previously concluded that
this language does not prevent the jury from considering relevant, mitigating
evidence. See Beazley v. Johnson, 

, 260 (5th Cir. 2001) (“The
definition of mitigating evidence does not limit the evidence considered under
the third special issue (whether mitigating circumstances warrant a life, rather
than a death, sentence).”); see also Roach v. Quarterman, 220 F. App’x 270, 277
(5th Cir. 2007); Jackson v. Dretke, 181 F. App’x 400, 413–14 (5th Cir. 2006);
O’Brien v. Dretke, 156 F. App’x 724, 735–36 (5th Cir. 2005). The Supreme Court
has also expressed approval of this method of instructing the jury concerning the
consideration of mitigating evidence. See Penry v. Johnson, 

, 803
(2001) (using the “clearly drafted catchall instruction” of Texas Code of Criminal
Procedure article 37.071 § 2(e)(1) as a frame of reference to compare its “brevity
and clarity” against the confusing nature of the supplemental instruction given
in that case). Thus, reasonable jurists would not disagree with the district
court’s determination that the state court’s conclusion was not an unreasonable
application of federal law. We deny a COA on this issue.
D.    Ineffective Assistance of Counsel
      Cantu’s final two arguments are both framed as claims of ineffective
assistance of counsel. First, he asserts that he received ineffective assistance
because his trial counsel failed to object on due process grounds—though
counsel did object on evidentiary grounds—to the court’s admitting photographs
of the victims’ bodies and of the crime scene as found by the investigators.
Second, he argues that his trial counsel rendered ineffective assistance for
failing to object to the prosecution’s sentencing-phase argument urging the
jurors to look at the admitted photographs. Both of these claims are governed
by the familiar Strickland standard.
      Under Strickland v. Washington, Cantu must show: (1) that his trial
counsel’s performance was deficient; and (2) that the deficient performance

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                                       No. 09-70007

prejudiced him.       See 

, 687 (1984).           To meet the first required
showing, Cantu must demonstrate that his counsel’s representation was
unreasonable as determined by prevailing professional norms in light of the
case’s facts as viewed at the time of counsel’s conduct and in light of our strong
presumption that counsel rendered adequate assistance. 

690. To
meet the second required showing, Cantu must demonstrate that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different,” 

and, notably, “the mere
possibility of a different outcome is not sufficient to prevail on [this] prong,”
Crane v. Johnson, 

, 312 (5th Cir. 1999). “Failure to make the
required showing of either deficient performance or sufficient prejudice defeats
the ineffectiveness claim.” 

. With this standard in
mind, we turn to Cantu’s specific ineffectiveness arguments.
       1.     Failure To Raise A Due Process Objection To Photographs
       Cantu’s first claim centers on his trial counsel’s failure to raise a due
process objection to the admissibility of victim and crime-scene photographs that
depicted the gruesome results of Cantu’s and his cohorts’ conduct. The state
court concluded that Cantu’s counsel was not ineffective because admitting the
evidence did not violate due process. To violate due process, an evidentiary
ruling must result in a “denial of fundamental fairness,” and improperly
admitting evidence will only justify habeas relief “if the admission was a crucial,
highly significant factor in the defendant’s conviction.” Neal v. Cain, 

, 214 (5th Cir. 1998).3




       3
        Cantu argues that the latter standard in Neal is too onerous; however, he made no
such argument to the district court in his habeas petition. Thus, we do not consider the
argument on appeal. See Johnson v. Puckett, 

, 448 (5th Cir. 1991) (“We have
repeatedly held that a contention not raised by a habeas petitioner in the district court cannot
be considered for the first time on appeal from that court’s denial of habeas relief.”).

                                              10
                                 No. 09-70007

      The district court determined that the state court’s conclusion was not an
unreasonable application of federal law. It noted that “graphic crime scene
photographs do not offend due process principles when they ‘serve[] to illustrate
and make more understandable the officers’ testimony which described the
[scene] and its condition, and the location and condition of the deceased’s body
and the nature and extent of the injuries to the deceased.’” Cantu, 

, at *23 (alterations in original) (quoting Woods v. Johnson, 

,
1039 (5th Cir. 1996)).    Here, the district court explained, the prosecution
introduced the photographs while doing just that—describing the condition of
the corpses, explaining the process of identifying the bodies, and verifying the
statements made by Cantu and others. Further, the trial court did not admit all
of the prosecution’s proffered photographs and instead engaged in a process of
weighing the probative value of each photograph against its likely prejudicial
effect. Finally and in the alternative, the district court determined that there
was no reasonable probability of a different result had Cantu’s counsel raised a
due process objection to the photographs because other sources of evidence
“painted a vivid image of Cantu’s brutality” and otherwise amply supported a
finding that Cantu committed capital murder. 

      In his petition for COA, Cantu argues that admitting the photographs
violated due process—and, therefore, his counsel was ineffective—because the
prejudicial effect of the photos greatly outweighed their probative value.
Further, he asserts that there exists a reasonable probability that the result of
the proceeding was affected by the graphic nature of the photographs. These
arguments are unavailing. First, as the district court recognized, admitting such
graphic photographs does not offend due process when the photographs are used
to add illustration to testimony describing the details of the crime, as was done
here. See 

. Second, given the extent of the other evidence
supporting Cantu’s conviction, reasonable jurists would not disagree with the

                                       11
                                  No. 09-70007

district court’s determination that Cantu has not shown that he was prejudiced
by his counsel’s failure to raise a due process objection. We therefore deny a
COA on this issue.
      2.    Failure To Object To Prosecution’s Argument
      Finally, Cantu contends that he received ineffective assistance because his
trial counsel failed to object when the prosecution urged the jury to consider the
graphic photographs in its sentencing-phase argument. After considering the
prosecution’s argument in the context of the argument made by Cantu, the
district court determined that the state court did not unreasonably apply federal
law in denying this claim.     We conclude that reasonable jurists would not
disagree on this matter.
      During the closing arguments of the trial’s sentencing phase, Cantu’s
counsel stated:
            Peter Cantu is not an animal. The State can talk all day long
      about what a horrible person he is and how these girls, those
      children . . . . Those children suffered a brutal killing. Well, this is
      a sanitized and civilized killing that we have for Peter Cantu. He
      is a child, he is eighteen, and that’s what this is about. Are you
      going to kill him, because as we told you on voir dire he has a life
      sentence as soon as you found him guilty. Because we have this
      procedure set up, do we kill our children? Do we kill our children
      when you know they needed help, when you know they’re a problem,
      when you know there are problems? . . . Don’t kill that child. He
      had problems, he was sick, he is sick. Spare his life, please, ladies
      and gentlemen of the jury. Please spare his life. Thank you.
In the portion of the prosecution’s argument that Cantu challenges, the
prosecution stated:
             And if you care to, you can see the result of this defendant’s
      handy work again. Open it up, look at it. I’m not going to show it
      to you. I suspect that it’s something you will never ever forget if you
      never see these photos again, but if you want to see, if you want to
      start thinking about don’t kill that child, don’t kill that child, think



                                        12
                                   No. 09-70007

      about the two children in here that all you got left of them is right
      here.
Just prior to that statement, the prosecution set up its argument by asserting
that “[t]he State has brought to you a lot of evidence to show you what this
defendant is like, who he really is. He is not an eighteen year old child that
didn’t know what he was doing. . . . It’s not a question of you killing this child.”
And finally, the prosecution closed by reiterating:
             Think about how cold the man is, how cowardly he is, how
      cruel he is. Think about the ordeal of those two young girls right
      here. How they were mutilated, brutalized for perhaps as much as
      an hour. You know what damage was done to their bodies. Think
      about how their death was not instantaneous. . . . Cold, cruel,
      inhuman, and yet he has his attorney saying don’t kill the child. Do
      you think that if Mr. Ertman or Mr. Pena or Mrs. Ertman or Mrs.
      Pena had come on up on the scene and said to Peter and his gang
      don’t kill that child, don’t kill that child, would he have listened?
      No, not in the least. They didn’t have the luxury of having anybody
      intervene for them, and he wants you to don’t kill this child. Look
      at the evidence. Very brutal, very slow, tortured, a senseless killing.
      Done purely to prevent him being caught for the crimes that had
      been done.
      The state court concluded that Cantu’s counsel’s performance was not
deficient because the prosecution’s statements were proper under Texas law and
did not inject new or harmful facts into the trial in light of the record as a whole.
The district court, in turn, evaluated the state court’s conclusion that the
arguments were proper under the due process standard.               See Darden v.
Wainwright, 

, 181 (1986) (“[T]he appropriate standard of review for
[a claim challenging the prosecution’s closing argument] on writ of habeas
corpus is the narrow one of due process, and not the broad exercise of
supervisory power.” (internal quotation marks omitted)).
      In reviewing the prosecution’s argument, “[t]he relevant question is
whether the prosecutors’ comments so infected the trial with unfairness as to



                                         13
                                  No. 09-70007

make the resulting conviction a denial of due process.” 

marks omitted). That standard is applied in light of the Court’s recognition that
the “State has a legitimate interest in counteracting the mitigating evidence
which the defendant is entitled to put in, by reminding the sentencer that just
as the murderer should be considered as an individual, so too the victim is an
individual whose death represents a unique loss to society and in particular to
his family.” Payne v. Tennessee, 

, 825 (1991).
      Here, the district court determined that the state court did not
unreasonably apply federal law in concluding that the prosecution’s argument
was proper and, therefore, that Cantu’s counsel’s performance was not deficient
in failing to object to the argument. The district court noted that the prosecution
was seeking to counteract Cantu’s mitigating evidence by bringing attention to
the victims and comparing the legal process by which Cantu might receive a
death penalty to the brutality of the murders committed by Cantu. In making
this comparison, the prosecution referred to the challenged photographs. The
district court recognized that the prosecution’s arguments were harsh, but it
concluded that the arguments did not render the trial fundamentally unfair.
Finally and in the alternative, the district court noted that Cantu was not
prejudiced by his counsel’s failure to object because of the significant amount of
punishment-phase evidence demonstrating Cantu’s violence and the slim chance
of his rehabilitation.
      Other than reurging his assertion that his trial counsel rendered
ineffective assistance for failing to object to the prosecution’s argument, Cantu
raises no additional argument in his petition for COA. After reviewing the
district court’s thoughtful consideration of the issue, we cannot say that
reasonable jurists would disagree with its determination that the state court’s
conclusion was a reasonable application of federal law. Thus, we deny a COA on
this final issue.

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                         No. 09-70007

                     IV. CONCLUSION
For the foregoing reasons, Cantu’s application for a COA is DENIED.




                              15