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MILLER v. DRETKE

No. 04-70009.

404 F.3d 908 (2005)

Donald Anthony MILLER, Petitioner-Appellee-Cross-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant-Cross-Appellee.

United States Court of Appeals, Fifth Circuit.

March 24, 2005.

Attorney(s) appearing for the Case

Philip Harlan Hilder, James Gregory Rytting, Hilder & Associates, Houston, TX, for Donald Anthony Miller.

Kelli L. Weaver, Austin, TX, for Doug Dretke.

Before BARKSDALE, GARZA and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

At issue is whether to grant a certificate of appealability (COA) to Donald Anthony Miller on any of three claims for habeas relief denied by the district court. See 28 U.S.C. §§ 2253, 2254. Miller was convicted in Texas state court of capital murder and sentenced to death. Federal habeas relief was conditionally granted by the district court on one claim, but only for sentencing: that, pursuant to

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