Glen Carter v. Lorie Davis, Director

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-20734

GLEN DALE CARTER,

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 Southern District of Texas
USDC No. 4:17-CV-2514

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

Glen Dale Carter, Texas prisoner # 1972804, was convicted by a jury on
two counts of aggravated robbery with a deadly weapon and was sentenced to
two concurrent 45-year prison terms. The district court denied Carter’s 28
U.S.C. § 2254 application on summary judgment. Carter now moves for a
certificate of appealability (COA), as well as a hearing in this court on his

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
February 11, 2020

Lyle W. Cayce
Clerk
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No. 18-20734
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objection to the substitution of State’s counsel and on his request for release
on a personal recognizance bond.
A prisoner seeking a COA must make a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The COA applicant
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 proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quotation marks and citation omitted). Where a district court has rejected the
constitutional claims on the merits, “[t]he petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Id. On the other hand, when the
district court has denied relief based on procedural grounds, a COA should be
granted “when the prisoner shows, at least, 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.” Id.
Carter has failed to make the requisite showing for issuance of a COA
with respect to his claims that: his due process rights were violated because
his state habeas application was denied without a sufficient statement of
reasons; the evidence was insufficient to support his convictions; the trial court
erred in admitting DNA evidence that was illegally obtained from him; his trial
counsel rendered ineffective assistance by failing to move for the suppression
of the DNA evidence illegally obtained from him; and his appellate counsel
rendered ineffective assistance by failing to challenge the trial court’s
admission of the DNA evidence or his trial counsel’s ineffectiveness in failing
to move for the suppression of the DNA evidence. See id. We construe Carter’s
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No. 18-20734
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request 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, 185
(2011); McDonald v. Johnson, 139 F.3d 1056, 1059-60 (5th Cir. 1998). Finally,
Carter’s motion for a hearing in this court is denied.
MOTIONS DENIED; AFFIRMED.

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