UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM LEE SHACKLEFORD,
No. 99-15263
Petitioner-Appellant,
D.C. No.
v.
CV-96-03338-CRB
SUSAN HUBBARD, Warden,
OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
August 11, 2000--San Francisco, California
Filed December 12, 2000
Before: David R. Thompson, Thomas G. Nelson, and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Thompson
_________________________________________________________________
COUNSEL
William Weiner, San Francisco, California, for the petitioner-
appellant.
Morris Beatus, California Deputy Attorney General, San
Francisco, California, for the respondent-appellee.
_________________________________________________________________
OPINION
THOMPSON, Circuit Judge:
William Lee Shackleford, a California state prisoner,
appeals the judgment of the district court denying his petition
for a writ of habeas corpus. Shackleford was tried and con-
victed in state court of first-degree murder.
Three issues have been certified for this appeal: (1) Was
Shackleford denied due process because the state trial court
gave the jury an erroneous felony-murder instruction? (2)
Was Shackleford denied effective assistance of counsel
because his trial attorney failed to object to that instruction?
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(3) Was Shackleford denied effective assistance of counsel
because, at a suppression hearing, his trial attorney failed to
present evidence of Shackleford's cocaine use, sleep depriva-
tion, and mental deficiencies when challenging his Miranda
waiver and confession? In addition to these issues, Shackle-
ford asks us to consider three additional issues. See 9th Cir.
R. 22-1(d). We have jurisdiction pursuant to 28 U.S.C.
SS 1291 (1994) and 2253 (Supp. IV 1998). We decline to
expand the issues certified for appeal and affirm the district
court's denial of Shackleford's habeas petition.
I. Facts
On June 2, 1988, Shackleford, his friend Sean Harris
("Sean"), Sean's sister Tracy Harris ("Tracy"), and Tracy's
boyfriend Richard Daniels attended a party hosted by Maria
Snider, the victim Shackleford later killed. The group con-
sumed alcohol and smoked crack cocaine brought by Shackle-
ford. Throughout the evening, the other partygoers noticed
Snider and Shackleford were acting romantically interested in
one another.
Sometime after midnight, the group decided to drive to
Tracy and Sean's mother's house in Danville, California.
Once in the car, however, Tracy and Daniels got into an argu-
ment. Tracy struck Daniels across the face. Snider then
entered the fray, hitting Daniels on the head. The blow was
so severe that it knocked Daniels unconscious and opened a
large cut on his head. The group immediately drove Daniels
to a hospital, where the wound was stitched and treated.
Rather than proceed to Danville, the group returned to
Snider's apartment, where they dropped her off at about 9:00
a.m. Shackleford got out of the car a couple of blocks later.
The others assumed he was returning to Snider's apartment,
and left.
At about 11:00 a.m., an upstairs neighbor heard some
thumping sounds coming from Snider's apartment and went
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down to investigate. The neighbor thought he heard Snider
crying inside the apartment and knocked, but when no one
answered he went back to his apartment because he assumed
it was just an argument. Around noon, Shackleford tele-
phoned Vivian Harris ("Vivian"), Sean and Tracy's mother,
and told her that Snider was dead. Vivian set up a three-way
telephone conversation with Tracy, Shackleford, and herself.
Shackleford, who was in tears at the time, told Vivian and
Tracy that a man wearing a sweat suit and gold chains had
visited Snider that morning. According to Shackleford, Snider
asked Shackleford to leave; he did so and when he returned
he found Snider dead.
After another telephone conversation, Shackleford, Sean,
Sean's friend, and two of Snider's coworkers drove to
Snider's apartment. Along the way, Sean contacted a police
officer, who followed them. When the group arrived at
Snider's apartment, they found her corpse lying face up on the
bedroom floor. Snider was naked except for a towel that cov-
ered her face and a piece of cloth that covered her genital
area. An electrical cord had been tied and knotted around her
neck. When police officers uncovered Snider's groin, they
found a bottle of hair dye inserted in her vagina. There were
also cigarette ashes and a burn mark on her stomach.
The police asked Shackleford, Sean, and one of the men
who had accompanied them to the apartment to come to the
police station to be interviewed. There, Shackleford falsely
told the detectives his name was William Cooper. He also
repeated the story that he left Snider with an unknown man
in a sweat suit shortly before her death.
After Shackleford left the police station, Detective Cathy
Lee decided to interview him a second time because she
found his earlier statement inconsistent. Shackleford returned
to the police station later that day, between 6:30 and 7:00 p.m.
Shackleford repeated his story about the unknown man in the
sweat suit but added that after he left Snider's apartment, he
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had a telephone conversation with a female friend. The police
contacted the friend, who denied speaking with Shackleford.
The detectives then advised Shackleford of his Miranda
rights, which he waived. The detectives confronted Shackle-
ford with the inconsistencies in his statements and asked him
about his parole status. When Shackleford denied being on
parole, the detectives confronted him with the fact that he was
scheduled to be on parole for eight more months. Shackleford
said his parole would be completed in six months, to which
one of the officers responded, "I'm sure we can stretch it out,"
adding, "You're on parole. Don't be telling me you don't
have to do things . . . . Because when it comes down to it, I
guess I could violate you. Because I had a parolee tell me that
one time. I violated his parole just like that." After a long
pause, the agent encouraged Shackleford to take a polygraph
test.
During the interrogation, Shackleford stated several times
that he was tired and asked if he could lie down for forty-five
minutes. One of the detectives told him that it would be better
to take the polygraph test first; Shackleford agreed and took
the test. The test began at 11:20 p.m. Although not under
arrest, Shackleford was once again advised of his Miranda
rights, which he waived. He initially repeated his story about
the man in the sweat suit, but shortly before midnight, he
changed his story and said that a man named JoJo Muldroe
killed Snider. Shackleford said he found Muldroe leaning
over Snider's body and chased him from Snider's apartment.
The police then brought Muldroe to the station. During the
taped confrontation that followed, Muldroe denied killing
Snider. The detectives observed that Muldroe did not have
any marks on his face, although Shackleford claimed to have
hit him while chasing him from Snider's apartment. Shackle-
ford was arrested and thereafter confessed to killing Snider.
He told Detective Lee that Snider agreed to have sex with him
in exchange for drugs. After having sex, the two sat in
Snider's kitchen and smoked some crack cocaine Shackleford
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had brought. When Shackleford tried to leave, Snider became
angry because she wanted to smoke more of his cocaine.
According to Shackleford, she became so agitated that she
began to hit him and threatened him with a small knife.
Shackleford explained to the detectives that he fought back,
telling them: "I ain't gonna let nobody just put their hands on
me . . . ." Shackleford told the detectives that after pushing
Snider into the bedroom, he put her in a headlock and choked
her until she fell to the ground. Although she got up to resume
the fight, Shackleford subdued her and tied her up with an
electrical cord. He said he then removed Snider's clothing
and, after smoking a cigarette, burned Snider's stomach with
it because "she was trying to make [him] feel pain." Later,
while Snider was on the floor, still breathing, he said, he
cinched the electrical cord around her neck to choke her.
Shackleford told the detectives that even with the electrical
cord around her neck, Snider cried and continued to make
breathing sounds for ten minutes. At some point, he put a bot-
tle of hair dye in her vagina. Shackleford said he became
scared, and when Snider stopped breathing, he returned to the
kitchen, smoked the rest of his cocaine, and left the apart-
ment. He maintained he did not intend to kill Snider and that
her death was an accident.
At trial, Shackleford testified. He dismissed his confession
as a lie and repeated his story about the man in the sweat suit.
He said he had lied to the police when he told them his name
was "Cooper" because he was on parole and feared that he
was violating the conditions of his parole by coming in con-
tact with the police. He said he told the detectives Muldroe
killed Snider because he thought they did not believe his story
about the man in the sweat suit. He said he confessed because
he thought it was the only way he could get the detectives to
stop interrogating him so that he could go home and rest.
A jury convicted Shackleford of first-degree murder and he
was sentenced to thirty years to life. The California Court of
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Appeal affirmed his conviction and the California Supreme
Court denied his petition for review and his petition for a writ
of habeas corpus, both without comment.
Shackleford then filed a petition for a writ of habeas corpus
in federal district court. In that petition, as amended, he
alleged that (1) his conviction and sentence were unconstitu-
tional because he was mentally incompetent throughout the
legal proceedings; (2) he was denied due process when his
confession was introduced at trial; (3) he was denied due pro-
cess because the trial court gave the jury an erroneous felony-
murder instruction; and (4) he was denied effective assistance
of counsel.
Shackleford's ineffective assistance of counsel claim incor-
porated several sub-claims. He asserted he was denied effec-
tive assistance because his trial attorney failed to object to the
erroneous felony-murder instruction, to investigate and pre-
sent evidence of Shackleford's drug use in challenging his
confession, to present an intoxication defense, to effectively
argue to the jury that his confession was unreliable, and to
request an involuntary manslaughter instruction.
The district court denied Shackleford's habeas petition, but
granted a certificate of appealability on two issues: (1) Did the
trial court's erroneous felony-murder instruction deprive him
of due process? (2) Did Shackleford's trial attorney's failure
to object to that instruction deprive him of his right to coun-
sel? A motions panel of this court expanded the certificate to
include the issue of whether Shackleford's trial counsel was
ineffective because, at the suppression hearing, he failed to
present evidence of Shackleford's cocaine use, fatigue, and
mental deficiencies when challenging his Miranda waiver and
confession. The motions panel denied Shackleford's request
to expand the certificate to add additional issues.
II. Standard of Review
[1] We review de novo the denial of a petition for a writ of
habeas corpus. See Bean v. Calderon, 163 F.3d 1073, 1077
15892
(9th Cir. 1998), cert. denied, _______ U.S. _______, 120 S. Ct. 285
(1999); Allen v. Crabtree, 153 F.3d 1030, 1032 (9th Cir.
1998), cert. denied, 525 U.S. 1091 (1999). Shackleford's fed-
eral habeas petition, which he filed on September 13, 1996,
is governed by the Antiterrorism and Effective Death Penalty
Act ("AEDPA"). Under the relevant provision of the AEDPA,
a federal court may grant relief only if the state court 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. S 2254(d)(1) (Supp. IV
1998).
In Williams v. Taylor, _______ U.S. _______, 120 S. Ct. 1495
(2000), the Supreme Court resolved much of the debate con-
cerning how to interpret 28 U.S.C. S 2254(d)(1). See Van
Tran v. Lindsey, 212 F.3d 1143, 1149 (9th Cir. 2000), cert.
denied, _______ U.S. _______, 121 S. Ct. 340 (2000). It clarified that
the "contrary to" and "unreasonable application" clauses have
distinct meanings. See Williams, 120 S. Ct. at 1519-22; Van
Tran, 212 F.3d at 1150.
[2] Under the "contrary to" clause, a federal court should
grant the writ (1) when the state court has failed to apply the
correct controlling authority from the Supreme Court or (2)
when the state court has applied the correct controlling
authority from the Supreme Court to a case involving facts
"materially indistinguishable" from those in a controlling
case, but has nonetheless reached a different result. See Van
Tran, 212 F.3d at 1150 (citing Williams, 120 S. Ct. at 1519-
20); see also LaJoie v. Thompson, 217 F.3d 663, 667-68 (9th
Cir. 2000) (quoting Van Tran, 212 F.3d at 1149-50).
[3] Under the "unreasonable application" clause, a federal
court should grant the writ when the state court's application
of clearly established federal law is "objectively unreason-
able." See Williams, 120 S. Ct. at 1521. Although in Williams
the Court declined to define "unreasonable," we have held
that a judgment is "objectively unreasonable" when it is
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clearly erroneous. See Van Tran, 212 F.3d at 1152-54. It is
not enough that a petitioner convinces the court that he has
the better of two reasonable legal arguments. The court must
be left "with a `firm conviction' that one answer, the one
rejected by the [state] court, was correct and the other, the
application of the federal law that the [state ] court adopted,
was erroneous . . . ." Id. at 1153-54.
III. The Felony-Murder Instruction
We first consider Shackleford's contention that he was
denied due process by the trial court's felony-murder instruc-
tion. We conclude that, although the trial court erred in giving
the felony-murder instruction, that error was harmless under
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
The trial court, after explaining that a willful and deliberate
killing is first-degree murder, told the jury,
The unlawful killing of a human being whether
intentional, unintentional or accidental, which occurs
during the commission or attempted commission of
the crime of torture, is murder of the first degree
when the perpetrator had the specific intent to com-
mit such crime. The specific intent to commit torture
in the commission or attempted commission of such
crime must be proved beyond a reasonable doubt.
. . . .
The crime of murder by torture does not require
any proof that the perpetrator intended to kill his vic-
tim or any proof that the victim was aware of pain
or suffering.
There is no question that this instruction was erroneous.
Indeed, the State concedes as much. The instruction told the
jury that Shackleford could be found guilty of first-degree
15894
murder provided he "committed the crime of torture." But tor-
ture was not one of the five felonies enumerated in the 1988
version of California Penal Code section 189 that would have
triggered the felony-murder rule. See Cal. Pen. Code S 189
(West 1988). As a result, a killing that occurred during the
infliction of torture was not first-degree murder without a
finding of malice. See People v. Dillon, 668 P.2d 697, 710
(Cal. 1983); People v. Mattison, 481 P.2d 193, 196 (Cal.
1970). As the California Supreme Court explained in Matti-
son,
It must be emphasized . . . that a Killing by one of
the means enumerated in [Penal Code S 189 ] is not
murder of the first degree unless it is first established
that it is Murder. If the killing was not murder, it
cannot be first degree murder, and a killing cannot
become murder in the absence of malice afore-
thought. Without a showing of malice, it is immate-
rial that the killing was perpetrated by one of the
means enumerated in the statute.
481 P.2d at 196.
[4] Because the trial court's felony-murder instruction per-
mitted the jury to convict Shackleford of first-degree murder
by reference to a predicate felony that did not exist, the error
was contrary to clearly established federal law. See Suniga v.
Bunnell, 998 F.2d 664, 669-70 (9th Cir. 1993). Relying on
Suniga, Shackleford argues that the instructional error
infected the entire trial, and therefore we should not apply a
harmless error analysis. See id. at 670. We disagree. In
Suniga, the jury could have convicted the defendant of
second-degree murder, without ever considering malice, sim-
ply by using, improperly, assault with a deadly weapon as the
predicate felony. Here, the jury could not have convicted
Shackleford of first-degree murder by torture without finding
malice. Suniga is inapplicable. See Ficklin v. Hatcher, 177
F.3d 1147, 1151 (9th Cir. 1999), cert. denied , _______ U.S. _______,
15895
120 S. Ct. 352 (1999) (explaining that Suniga is "inapplica-
ble" when a reviewing court "can tell with certainty from the
jury instructions that the jury rested its verdict on a ground
that did not implicate petitioner's constitutional right[s]").
[5] Shackleford was found guilty of first-degree murder by
torture. See Cal. Pen. Code S 189. In California, at the time
of Shackleford's conviction, to find a defendant guilty of first-
degree murder by torture, a jury had to find, just as Shackle-
ford's jury was instructed, that the defendant killed the victim
with malice aforethought and that the killing was committed
with the intent to cause cruel pain and suffering for the pur-
pose of revenge, extortion, persuasion, or for any other sadis-
tic purpose. See People v. Davenport, 710 P.2d 861, 872 (Cal.
1985); People v. Wiley, 554 P.2d 881, 883-84 (Cal. 1976).
"The defendant need not have an intent to kill the victim --
the malice element of murder may be supplied by an inten-
tional act involving a high degree of probability of death
which is committed with conscious disregard for human life."
Davenport, 710 P.2d at 872-73 (citations omitted); see also
Wiley, 554 P.2d at 884.
Shackleford argues the jury could not have found that he
acted with malice. He emphasizes that even during his confes-
sion, he told the detectives he did not want to kill Snider and
that her death was "an accident." He adds that after Snider's
death, he was remorseful. But as the state court pointed out,
it was irrelevant whether Shackleford intended to kill Snider
because it is sufficient that he acted with a conscious disre-
gard for life, knowing that his actions would have a high
probability of causing death. See Davenport, 710 P.2d at 872-
73; see also Wiley, 554 P.2d at 884.
[6] Not only could the jury have found malice, the jury had
to have found malice. Snider died by strangulation. By find-
ing that Shackleford killed her, the jury necessarily found that
Shackleford strangled her to death. A pathologist testified at
trial that given the garrote used, it took at least ten minutes for
15896
Snider to die. Moreover, the evidence showed that Snider
sobbed as she slowly strangled to death, and that during this
time Shackleford listened to her sobs while he held the elec-
tric cord cinched fast around her neck until she died.1
[7] "[H]omicide by strangulation indicates malice." People
v. La Vergne, 411 P.2d 309, 313 (Cal. 1966); see also People
v. Caldwell, 279 P.2d 539, 542 (Cal. 1955). The jury had to
have found that Shackleford knew there was a great risk that
Snider would die from the strangling. As the state court
grimly noted: "One ordinarily cannot strangle and garrote
someone and listen to their labored breathing for ten minutes
as they expire without appreciating that the conduct is life
threatening." People v. Shackleford, No. A046989 (Ca. Ct.
App. filed July 18, 1991), at 11 (emphasis in original). The
result is that the jury had to have found that Shackleford
killed Snider with malice while he tortured her. And that was
the verdict: guilty of first-degree murder by torture.
[8] We conclude that, although the trial court's felony-
murder instruction was contrary to clearly established federal
law, it did not have a "substantial and injurious effect or influ-
ence in determining the jury's verdict." Brecht, 507 U.S. at
623. Accordingly, the error was harmless.
[9] The state appellate court also found that the erroneous
felony-murder instruction was harmless.2 Because we con-
_________________________________________________________________
1 As the California Court of Appeal pointed out, the jurors could not
have relied only on the cigarette burns or bottle insertion to find torture.
There was only one perpetrator. If the jurors found that Shackleford used
the cigarette and/or bottle with torturous intent, they would have found
that he strangled the victim, and there was no reason to suppose his intent
changed as he turned from one torment to another. Shackleford's own
statements indicate that he tied the cord around Snider's neck between
burning her and inserting the bottle. People v. Shackleford, No. A046989
(Ca. Ct. App. filed July 18, 1991), at 10 n.2.
2 The California Supreme Court denied review of Shackleford's direct
appeal and habeas petition without comment. In this circumstance, we
15897
clude the error was harmless under Brecht, and since the state
appellate court's decision came to the same conclusion, that
decision was not contrary to, or an unreasonable application
of, clearly established federal law. See Van Tran, 212 F.3d at
1155, 1159 (denying writ because state court decision was not
"contrary to" or "unreasonable application " of federal law);
Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000)
(granting writ because state court decision was both "contrary
to" and "unreasonable application" of federal law). But cf.
LaJoie, 217 F.3d at 673 n.13 (granting writ because state
court decision was "unreasonable application" of federal law);
Williams, 120 S. Ct. at 1516 (reversing denial of writ because
state court decision "was contrary to, or involved an unrea-
sonable application of, clearly established Federal law").
IV. Counsel's Failure to Object to the Felony-Murder
Instruction
[10] We reject Shackleford's argument that his trial counsel
rendered ineffective assistance by failing to object to the
felony-murder instruction. The applicable law that guides our
analysis is supplied by Strickland v. Washington , 466 U.S.
668 (1984), which is "clearly established Federal law" under
the AEDPA. See Van Tran, 212 F.3d at 1156; Delgado, 223
F.3d at 980. To show that an attorney's representation of a cli-
ent was ineffective under Strickland, the petitioner must
establish that (1) the attorney's representation fell below an
objective standard of reasonableness; and (2) the deficient
representation prejudiced the defense. 466 U.S. at 687; Schell
v. Witek, 218 F.3d 1017, 1028 (9th Cir. 2000).
[11] We need not consider whether Shackleford's counsel's
representation fell below an objective standard of reasonable-
_________________________________________________________________
"look through" the unexplained California Supreme Court decisions to the
last reasoned decision, the state appellate court's decision, as the basis for
the state court's judgment. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04
(1991).
15898
ness because, in light of our foregoing analysis, Shackleford
cannot show prejudice; he cannot show that had his trial coun-
sel objected, and had the erroneous instruction not been given,
there was a reasonable probability that the result of the pro-
ceedings would have been different. See Strickland, 466 U.S.
at 691; Williams v. Calderon, 52 F.3d 1465, 1470 (9th Cir.
1995).
V. Counsel's Failure to Present Evidence at the
Suppression Hearing
Shackleford next contends he was denied effective assis-
tance of counsel because his trial counsel did not present evi-
dence at the suppression hearing concerning his cocaine use,
fatigue, and mental deficiencies.3 Such evidence, he argues,
would have shown that he was not competent to waive his
Miranda rights and that his confession was the product of
coercion.
[12] A defendant's waiver of his Miranda rights is valid if
it is voluntary, knowing, and intelligent. Miranda v. Arizona,
384 U.S. 436, 444, 475 (1966); Moran v. Burbine , 475 U.S.
412, 421 (1986) (quoting Miranda, 384 U.S. at 444, 475). The
fact that a suspect is under the influence of drugs or medica-
tion is irrelevant if the suspect's statement was "the product
of a rational intellect and a free will." Mincey v. Arizona, 437
U.S. 385, 398 (1978) (quoting Townsend v. Sain , 372 U.S.
293, 307 (1963)); see also United States v. George, 987 F.2d
1428, 1430-31 (9th Cir. 1993); United States v. Lewis, 833
F.2d 1380, 1384-85 (9th Cir. 1987); United States v. Martin,
781 F.2d 671, 673-74 (9th Cir. 1985); cf. Mincey , 437 U.S. at
396-402 (holding that an interrogation was not voluntary
_________________________________________________________________
3 The State contends that we should not reach the merits of this claim
because Shackleford never exhausted this claim in state court. See 28
U.S.C. S 2254(b)(1)(A) (Supp. IV 1998). The State's argument is incor-
rect: Shackleford raised this claim in his 1999 state habeas petition filed
with the California Supreme Court.
15899
where the defendant was in the intensive care unit of a hospi-
tal, was unable to speak and had to communicate through
writing, repeatedly asked for the interview to cease, gave
some incoherent answers, and lost consciousness several
times during the interrogation).
[13] Shackleford has not shown a reasonable probability
that had his counsel submitted evidence of his drug use,
fatigue and mental deficiencies, his waiver of his Miranda
rights would have been found to be not voluntary, knowing,
and intelligent. The trial court noted that, during the interroga-
tion, Shackleford was capable of asking lucid questions.
Although Shackleford may have had some level of mental
disability, he was coherent and articulate throughout the inter-
rogation. He demonstrated a full awareness of the nature of
the right being abandoned and the consequences of his deci-
sion to abandon it. See Moran, 475 U.S. at 421.
[14] Nor has Shackleford shown a reasonable probability
that his confession would have been suppressed if his counsel
had presented the evidence on which Shackleford now relies.
The state trial court, over a period of two days, listened to a
tape recording of the confession, took testimony from Detec-
tive Lee, who was cross-examined by Shackleford's counsel,
and heard extensive argument from counsel for both sides.
After all of this, the court found that Shackleford was "articu-
late and responsive to questions" and his confession was vol-
untary and intelligent. The failure to introduce evidence of his
drug use, fatigue, and mental deficiencies did not prejudice
him. His claim of ineffective assistance of counsel fails. See
Strickland, 466 U.S. at 687.
VI. Request for Expanded Certificate of Appealability
Finally, we turn to Shackleford's request for an expanded
certificate of appealability (COA). Shackleford seeks certifi-
cation of three additional issues: (1) whether he was denied
due process by the admission of his confession; (2) whether
15900
he was denied effective assistance of counsel because his trial
counsel failed to pursue an intoxication defense; and (3)
whether he was denied effective assistance of counsel because
his trial counsel failed to call into question the reliability of
his confession.
The right to appeal is governed by the COA requirements
found at 28 U.S.C. S 2253(c) (Supp. IV 1998). See Slack v.
McDaniel, _______ U.S. _______, 120 S. Ct. 1595, 1600 (2000). To
obtain a COA, a prisoner must make "a substantial showing
of the denial of a constitutional right." 28 U.S.C. S 2253(c)(2)
(Supp. IV 1998). In order to make such a showing a prisoner
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 pro-
ceed further.' " Slack, 120 S. Ct. at 1603-04 (internal quota-
tion marks omitted) (quoting Barefoot v. Estelle , 463 U.S.
880, 893 n.4 (1983)); see also Lambright v. Stewart, 220 F.3d
1022, 1025 (9th Cir. 2000) (quoting Barefoot, 463 U.S. at 893
n.4).
We deny Shackleford's motion to expand the COA because
reasonable jurists could not debate the district court's rulings
on the additional issues he wishes to pursue. The threatened
revocation of his parole if he did not take a polygraph test and
his fatigue do not, within the context of the rest of the evi-
dence in the case, create a substantial showing that his confes-
sion was involuntary; relying on an intoxication defense
would have weakened his defense; and his counsel's failure
to produce evidence of his mental deficiencies and history
does not raise a substantial issue of a constitutional violation
because, during closing argument, his counsel effectively
brought Shackleford's confusion to the jury's attention by
drawing upon evidence from the trial.
15901
CONCLUSION
We DENY Shackleford's motion to expand the COA, and
we AFFIRM the district court's judgment denying his habeas
petition.
AFFIRMED.
15902