Frizzell v. Davis

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-40303

JASON WAYNE FRIZZELL,

Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:17-CV-26

Before SMITH, COSTA, and HO, Circuit Judges.
PER CURIAM:
*

Jason Wayne Frizzell, Texas prisoner # 1915199, was convicted of injury
to a child and received a 20-year sentence. He now seeks a certificate of
appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254
petition challenging this conviction. To obtain a COA, Frizzell must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483 (2000). In order to satisfy

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
May 15, 2020

Lyle W. Cayce
Clerk
Case: 19-40303 Document: 00515417608 Page: 1 Date Filed: 05/15/2020

No. 19-40303
2
this standard, he 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 v. Cockrell, 537 U.S. 322, 327 (2003).
In his COA brief, Frizzell argues that the trial court’s refusal to grant
him pretrial access to legal research or to provide him with an investigator,
despite his waiver of his right to counsel, violated due process. He also
contends that the evidence was insufficient to support his conviction. Frizzell
maintains that the federal district court should have ordered discovery so that
the respondent would have to provide trial exhibits that were not included in
the state record and which would have called into question witness credibility.
He has not made the requisite showing for the issuance of a COA. See id.
In addition, Frizzell lists as an issue in his COA motion that the district
co urt erred in denying his § 2254 petition without first holding an evidentiary
hearing. He does not need a COA to challenge the denial of a motion for an
evidentiary hearing, and we construe his motion as a direct appeal of that
issue. See Norman v. Stephens, 817 F.3d 226, 234-35 (5th Cir. 2016). However,
his failure to brief the issue renders it abandoned. See United States v.
Scroggins, 599 F.3d 433, 446-47; Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). Accordingly, we affirm the district
court’s denial of Frizzell’s motion for an evidentiary hearing.
COA DENIED; AFFIRMED.
Case: 19-40303 Document: 00515417608 Page: 2 Date Filed: 05/15/2020