Joseph Hunter v. Lorie Davis, Director

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-11650

JOSEPH WAYNE HUNTER,

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 Northern District of Texas
USDC No. 3:17-CV-1886

Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM:
*

Joseph Wayne Hunter, Texas prisoner # 1981619, was convicted by a
jury of aggravated assault with a deadly weapon and causing serious bodily
injury, enhanced by family violence, and was sentenced to 25 years of
imprisonment. The district court denied some of his 28 U.S.C. § 2254 claims
as procedurally defaulted and other claims on the merits.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
March 16, 2020

Lyle W. Cayce
Clerk
Case: 18-11650 Document: 00515346094 Page: 1 Date Filed: 03/16/2020

No. 18-11650
2
To obtain a COA, Hunter must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). When a district court has denied a request for habeas
relief on procedural grounds, the prisoner must show “that jurists of reason
would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). When constitutional claims have been
rejected on the merits, the prisoner must show “that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong,” id., “or that the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El, 537 U.S. at 336 (internal
quotation marks and citation omitted).
Hunter has inadequately briefed and therefore waived his request for a
COA with respect to his claims of actual innocence, ineffective assistance of
appellate counsel, prosecutorial misconduct, and insufficiency of the evidence.
See McGowen v. Thaler, 675 F.3d 482, 497 (5th Cir. 2012). With respect to his
claims that trial counsel was ineffective for failing to call certain witnesses and
for failing to investigate and introduce into evidence the 911 call notes and
incident report, and that he was entitled to amend his petition, he fails to make
the requisite showing for the issuance of a COA. See Miller-El, 537 U.S. at
336. His motion for a COA is therefore denied as to those claims. We construe
his motion for a COA with respect to the district court’s denial of an evidentiary
hearing as a direct appeal of that issue, see Norman v. Stephens, 817 F.3d 226,
234 (5th Cir. 2016), and affirm, see Cullen v. Pinholster, 563 U.S. 170, 181-82,
185-86 (2011).
COA DENIED; AFFIRMED.
Case: 18-11650 Document: 00515346094 Page: 2 Date Filed: 03/16/2020