Pеtitioner-appellant Roy Lee Pippin seeks a certificate of appealability (COA) to appeal the district court’s summary judgment dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because Pippin cannot make a substantial showing of the denial of a constitutional right, we DENY his application for a COA.
I. BACKGROUND
Pippin owned and operated an air conditioning business known as Pippin Services. In December 1993, Pippin became involved in a money laundering scheme to funnel proceeds from the sale of Colombian cocaine in the United States to Mexico, using air conditioners and modified gas tanks of trucks to transport large sums of money across the Mexican border. When approximately $2 million in drug proceeds was reported missing, Pippin rented a white panel van from PV Rentals and reserved two rooms at a Motel 6 on April 27, 1994. 1 At Pippin’s request, Abraham Pacheco, an employee at Pippin Services, took two men, Elmer Buitrago and his cousin, Fabio Buitrago, to the Motel 6 and held them captive against their will for several days. 2 Before dawn on May 4, 1994, Pippin and Pacheco took Elmer and Fabio Buitrago to a warehouse in the rented van. Pippin then shot them each approximately four times through a pillow to muffle the sound, and both men then left the warehouse to get rid of the murder weapon. Shortly thereafter, Houston Police Officer Eddie Parodi, responding to a call of criminal mischief in progress at the apartment complex located directly behind the ware *785 house, arrived at the scene and found the fatally wounded Elmer Buitrago crying out in English and Spanish for help. 3
Before the ambulance arrived, Buitrago spoke with Officer Parodi and identified Pippin as the shooter. Buitrago described Pippin as a white male, approximately 5’9” and 200 pounds, with sandy brown hair. 4 Buitrago also claimed that after Pippin shot him in the warehouse, he was able to hit Pippin with a pipe and escape. Garza later testified that he also heard Buitrago say “Pippin shot me” and mention the name “Roy.” Buitrago died later that day at the hospital from his gunshot wounds. The body of Fabio Buitrago was not discovered until the next day, when Lieutenant Richard Maxey returned to the warehouse to obtain statements from witnesses. Upon further investigation, the police found eight fired nine-millimeter cartridge cases from a semiautomatic weapon on the right side of the room and some bullet holes and fired bullets lodged in the north wall of the warehouse.
Law enforcement officers arrested Pippin on June 28, 1994 at a friend’s house. At his trial, Pippin admitted to participating in the aggravated kidnappings of Elmer and Fabio Buitrago but denied killing any of them or even being present when they were killed. Charles Anderson, a ballistics expert for the Houston Police Department, testified about a ballistics report he prepared regarding the bullets and cartridge cases found at the crime scene. Both the prosecutor Julian Ramirez and Pippin’s defense attorneys Richard Whee-lan and Joan Campbell had access to Anderson’s report well in advance of the trial.
On September 15, 1995, Pippin was convicted of capital murder for intentionally killing more than one person during the same criminal transaction, and for killing Elmer Buitrago during the course of a kidnapping. Despite the presentation of mitigating evidence during the punishment phase of his trial, 5 Pippin was sentenced to death. The Texas Court of Criminal Appeals affirmed his conviction and sentence. Pippin v. State, No. 72,252 (Tex.Crim.App. May 21, 1997).
Pippin filed his original state habeas corpus petition on May 18, 1998. On July 11, 2001, he filed a second petition and supplemental memorandum of law raising several new claims. On August 3, 2001, the state trial court entered an order construing both the second application and the supplemental memorandum as successive petitions. In a per curiam order issued on February 20, 2002, the Texas Court of Criminal Appeals expressly adopted the trial court’s findings and conclusions, denied Pippin’s first petition on the merits, and dismissed the other two as abuses of the writ.
Ex parte Pippin,
Nos. 50,613-
*786
01, -02, -03 (Tex.Crim.App. Feb. 20, 2002) (unpublished). The Supreme Court of the United States subsequently denied Pippin’s petition for a writ of certiorari on October 7, 2002.
Pippin v. Texas,
On June 21, 2002, Pippin filed his original federal habeas petition in the District Court for the Southern District of Texas. The district court subsequently granted Pippin’s motion for appointment of new counsel on December 13, 2002, which resulted in an amended petition that was filed on May 14, 2003. In two separate memoranda and orders, issued on November 23, 2004 and January 25, 2005, respectively, the district court granted the respondent’s motion for summary judgment to deny habeas relief and sua sponte declined to issue a COA. 6
Pippin now asks this court to grant a COA and raises several grounds already rejected by the district court for relief: (1) Pippin was deprived of due process of law because the prosecutor allegedly withheld material evidence concerning the ballistics evidence in violation of
Brady v. Maryland,
II. DISCUSSION
A Standard of Review
Pippin’s claim is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA) because he filed his original federal habeas petition under § 2254 on June 21, 2002, after the AEDPA’s April 24, 1996 effective date.
See Fisher v. Johnson,
A COA mil be granted “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2004). In order to meet this standard, Pippin must demonstrate 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,
In determining whether the district court’s denial of Pippin’s petition was debatable, we must keep in mind the deferential standard of review that the AEDPA requires a district court to apply when considering a petition for habeas relief.
See Brown v. Dretke,
“[A] determination of a factual issue made by a State court shall be presumed to be correct” unless the petitioner rebuts the presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). This presumption of correctness attaches not only to explicit findings of fact, but also to “unarticulated findings which are necessary to the state court’s conclusions of mixed law and fact.”
Pondexter v. Dretke,
B. Due Process Claims
1. The Brady Claim
Pippin asserts that his constitutional rights were violated by the prosecutor’s alleged suppression of exculpatory evidence in violation of
Brady v. Maryland,
Anderson’s affidavit stated that the defense ballistics expert Floyd McDonald had access to and examined the bullet fragments before trial. Both experts concluded that the bullets were fired by two separate guns. The prosecutor Julian Ramirez has consistently asserted that he employed an open-file policy with the defense during the course of this trial and relied upon the same written ballistics reports that were provided to the defense counsel, which did not clearly disclose the involvement of a second gun.
Pippin now contends that the prosecutor withheld this information from the defense. Thus, Pippin asserts that this court should issue a COA because the district court’s resolution of his
Brady
claim was debatable among jurists of reason. The Texas Court of Criminal Appeals held that Pippin failed to establish the materiality of the evidence that two guns were involved. In resolving this claim of error, the court оbserved that “failure to disclose evidence favorable to the defendant is constitutional error only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”
Pippin v. State,
No. 72,252, slip op. at 21 (citing
United States v. Bagley,
Although finding the facts somewhat unclear, the district court correctly focused on the state court’s resolution of the alleged Brady violation to determine whether it was contrary to, or involved an unreasonable application of, clearly established federal law. In examining the state court’s findings, the district court noted that while Anderson’s ballistics report fails to explicitly mention the possibility of a second gun, the prosecution’s theory that Pippin was responsible for both deaths does not necessarily conflict with the available evidence from the ballistics report. 7 According to the district court, the report did clearly state that Anderson cоuld not identify two of the bullets (designated EB-3 and EB-4) from Fabio Buitrago’s body. The report also affirmatively indicated, however, that bullets EB-1 and EB-2 recovered from Fabio Buitrago’s body were fired from the same gun as one of the two bullets recovered from Elmer Buitrago’s body.
To establish a
Brady
claim, the petitioner must demonstrate: (1) the prosecutor suppressed evidence, (2) favorable to the defense, and (3) material to guilt or punishment.
Brady, 373
U.S. at 87,
Because the defense ballistics expert Floyd McDonald had full access to the ballistics evidence and an opportunity to conduct his own tests before trial, we conclude that the district court’s resolution of Pippin’s
Brady
claim is not debаtable among jurists of reason. As the district court pointed out, notwithstanding the confusion in Anderson’s report, the record does not show that the prosecution actual
*790
ly withheld any exculpatory evidence from the defense during the trial to satisfy the first prong of the
Brady
inquiry.
See United States v. Agurs,
2. The Jury Instruction Claim
Pippin next argues that he was denied due process by the trial court’s refusal to instruct the jury on the lesser included offense of felony murder. Specifically, Pippin contends that his own testimony at trial provided a basis for the jury to rationally find him guilty only of felony murder, rather than capital murder. He maintains that the district court’s conclusion on the propriety оf his jury instruction is debatable among reasonable jurists and accordingly asks this court to issue a COA on this ground.
The Texas Court of Criminal Appeals found no due process violation in the trial court’s jury instruction. Due process requires that a defendant receive a charge on a lesser-included offense if: (1) the lesser offense is included within the proof necessary to establish the offense charged, and (2) there exists some evidence in the record that would permit a jury rationally to find, if the defendant is guilty, he is guilty only of the lesser offense.
Pippin v. State,
No. 72,252, slip op. at 25 (citing
Wolfe v. State,
In reaching its conclusion, the state court focused on Pippin’s testimony at trial that he was involved only in the abduction and confinement for several days of the victims. Throughout his trial, Pippin steadfastly maintained that he played absolutely no role in the actual killings. The court concluded that the actions he admitted to at trial “d[id] not constitute the commission or attempted commission of an *791 ‘act clearly dangerous tо human life that cause[d] the death’ of one or both of the victims.” Id. at 27 (quoting Tex. Penal Code § 19.02(a)(3)). Therefore, the court found no error in trial court’s decision to provide the lesser-included offenses of aggravated kidnapping and kidnapping, rather than felony murder, in the jury instructions.
Following the same reasoning, the district court determined that the state court’s ruling was not contrary to, or an unreasonable application of, clearly established federal law. Due process requires a jury charge on a lesser included offense “when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense — but leaves some doubt with respect to an element that would justify conviction of a capital offense .... ”
Beck v. Alabama,
The district court found that the state court’s conclusion that this jury instruction did not run afoul оf the “fundamental concern in
Beck”
was not contrary to, nor an unreasonable application of, clearly established federal law.
Schad v. Arizona,
3. The Inattentive Juror Claim
Pippin argues that the presence of an inattentive juror during his criminal trial violated his constitutional right to due process. More specifically, Pippin raised a claim in his state habeas application that a member of the jury was reading a book during part of his defense counsel’s presentation. Pippin relied upon the single uncorroborated affidavit of his brother-in-law Michael L. Martin to support this claim. During the state habeas proceedings, both Pippin’s attorneys and the prosecutor submitted sworn statements flatly rejecting this observation and noting that the small size of the courtroom would have made it imрossible for such behavior to escape notice. In weighing the credibility of the affiants, the state habeas court found no due process violation for the allegedly inattentive juror. When Pippin raised the same claim in his federal habeas petition, the district court concluded that Martin’s affidavit was insufficient to rebut the presumption of correctness afforded to the state habeas court’s factual finding under § 2254(e)(1). See 28 U.S.C. § 2254(e)(1) (providing that “a factual issue made by a State court shall be presumed to be correct” and that “[t]he applicant shall have the burden of rebutting the *792 presumption of correctness by clear and convincing evidenсe”).
In light of the deferential standard under § 2254(e)(1), reasonable jurists could not debate the district court’s conclusion that the state habeas court’s determination was not contrary to, or an unreasonable application of, clearly established federal law. A trial court’s credibility determinations made on the basis of conflicting evidence are entitled to a strong presumption of correctness and are “virtually unreviewable” by the federal courts.
Moore v. Johnson,
C. Ineffective Assistance of Counsel Claim
Pippin’s claim of ineffеctive assistance of counsel is closely related to his Brady claim. Specifically, Pippin argues that the state’s failure to disclose evidence that two guns had been used to shoot the victim rendered his counsel unable: (1) to effectively conduct voir dire; (2) to elicit a timely confession from Aaron Loweth, who participated in the kidnappings and allegedly boasted to acquaintances after the killings that he had “popped” someone; (3) to effectively impeach Abraham Pacheco’s testimony; and (4) to negotiate a plea agreement to a lesser offense. Beyond reiterating its arguments with respect to the Brady сlaim, the state maintains that the strategic trial decisions of Pippin’s attorneys in dealing with the testimony of Loweth and Pacheco cannot support an ineffective assistance claim. 8 The state also disputes that the evidence of a second gun would have placed Pippin in a better pretrial bargaining position.
Looking to the state habeas court’s reasoning, the district court rejected Pippin’s claim of ineffective assistance of counsel on two separate grounds. First, the district court agreed with the state habeas court’s finding that the claims were procedurally defaulted.
See Sayre v. Anderson,
Although finding the claims procedurally defaulted, the district court nonetheless examined the state hаbeas court’s treatment of Pippin’s various claims of ineffective assistance of counsel under the familiar test established in
Strickland v. Washington,
We decline to issue a COA on Pippin’s ineffective assistance of counsel claims.
D. Sixth Amendment Confrontation Claim
Pippin argues that the admission into evidence of Elmer Buitrago’s dying declaration to Officer Parodi before the ambulance arrived identifying Pippin as the shooter violated Pippin’s right to confront his accuser under the Sixth Amendment. Again, Pippin attempted to raise this claim for the first time in his pro se state habeas application, which was dismissed as an abuse of the writ. Ex parte Pippin, Nos. 50,613-01, -02, -03. Following the reasoning provided in the state habeas court’s decision, the district court accordingly found the claim to be procedurally defaulted.
Even if not procedurally defaulted, the district court’s habeas review did not show that the state court’s findings were contrary to, or involved an unreasonable application of, clearly established federal law. In fact, the district court noted that dying declarations and excited utterances are well-established exceptions to the hearsay rule and are admissible in evidence.
9
See
Fed.R.Evid. 803(2), 804(b)(2). Contrary to Pippin’s argument, the district court’s review of the trial testimony of Officer Parodi clearly demonstrated that the factual predicate for the dying declaration exception to the hearsay rule had been established.
10
Pippin has offered nothing beyond a cursory historical survey of the Confrontation Clause to suggest that we should transform a matter of state evidentiary law into a federal constitutional issue worthy of additional review.
See Herrera,
E. Denial of Right to Depose the Prosecutor Claim
Finally, the issue of whether the district court should have allowed Pippin to take a particular deposition does not raise any constitutional issues — indeed, Pippin does not even argue that it does— and it is not, therefore, the proper subject of an application for a COA. Since we have concluded that а COA will not issue as to any of Pippin’s constitutional claims, we have no jurisdiction to consider the deposition matter. See 28 U.S.C. § 2253(c).
III. CONCLUSION
Because Pippin has not shown that reasonable jurists could debate the district court’s resolution of his various constitutional claims, we DENY Pippin’s application for a COA.
Notes
. Pippin's immediate supervisor in the money laundering scheme was a man identified in the record as “Alfredo.” When the missing money was discovered, Pippin apparently proceeded with the kidnapping plot under direct orders from Alfredo.
. The record shows that Pippin paid $500 per shift to three employees from his air conditioning business (Aaron Loweth, Flavio Salazar, and Jorge Pulido) to assist in holding the two men captive. Although Pippin and his wife stayed in the next room for a short time, Pippin would generally only visit the hotel to monitor the situation and occasionally bring food, beer, and drugs to the captors.
. Warren Garza, a security guard on duty at the apartment complex at the time, assisted Officer Parodi in finding the source of the commotion that resulted in the calls from concerned residents. Before Officer Parodi arrived at the scene, Garza had noticed two men fitting the physical descriptions of Pippin and Pacheco driving around the apartment complex in a white van.
. Pippin is a white male with sandy brown hair. At trial, hе testified that he is approximately 6T” and weighs between 210 and 220 pounds.
.Pippin’s mitigating evidence primarily consisted of the testimony of his ex-wife and her mother that he was not a violent person. Dr. Walter Quijano, a clinical psychologist, also testified that some studies demonstrate that violent behavior decreases with an inmate’s age. Pippin does not challenge the trial court’s admission of mitigating evidence at the punishment phase in his request for a COA.
. In the first memorandum and order, the district court granted respondent Dretke’s motion for summary judgment on twenty-four of Pippin’s twenty-six claims. Two claims were preserved for additional limited discovery and supplemеntal briefing: (1) Pippin’s claim that the prosecutor failed to disclose exculpatory evidence and (2) Pippin’s claim that the state impaired his right to effective assistance of counsel during the pretrial and jury voir dire by failing to use the ballistics evidence underlying his Brady claim. The second memorandum and order subsequently dismissed both remaining claims on summary judgment.
. A claim that is largely speculative with respect to the effect of the allegedly exculpatory evidence on the jury's ultimate determination of guilt or innocence cannot support a
Brady
violation.
See Medellin v. Dretke,
. With respect to Loweth's testimony, the state questions whether the existence of a second weapon would have exculpated Pippin in any manner. Loweth testified that Pippin instructed him to dispose of the murder weapon following the shootings, and it is difficult to comprehend how a second gun would have shifted blame away from Pippin or harmed the state's case in any material way. Moreover, as the district court noted, Pippin was not convicted of the homicide about which Loweth boasted to his girlfriend. Therefore, in accordance with the state habeas court’s decision, the district court concluded that the decision to avoid placing this information before the jury was a valid and reasonable trial strategy entitled to deference.
. The Texas Court of Criminal Appeals relied exclusively upon the excited utterance exception to the hearsay rule and did not consider Pippin’s argument with respect to the dying declaration exception. Pippin v. State, No. 72,252, slip op. at 14.
. In order to be admissible under the dying declaration exception, the statement must be made while the declarant is conscious of impending death and believes he has no hope of recovery.
Herrera
v.
Collins,