Flasik v. Davis

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10008

TIMOTHY TOSHIRO FLASIK, also known as Timothy Toshiru Flasik,
Petitioner―Appellant,
versus
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
No. 4:17-CV-634
No. 4:17-CV-636
No. 4:17-CV-637
No. 4:17-CV-638
No. 4:17-CV-639
No. 4:17-CV-640

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

Timothy Flasik, Texas prisoner #02027436, pleaded guilty of sexual
assault of a child, delivery of marihuana to a minor, and employing a minor for
sexual performance. The district court denied his 28 U.S.C. § 2254 habeas

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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 4, 2020

Lyle W. Cayce
Clerk
Case: 19-10008 Document: 00515331466 Page: 1 Date Filed: 03/04/2020

No. 19-10008
2
corpus petition, and he moves this court for a certificate of appealability
(“COA”) on claims that his guilty plea was involuntary because of coercion by
the state trial court and misleading advice from his attorney and that his attor-
ney was ineffective in failing to investigate, to move to suppress evidence, and
to present sentencing witnesses.
We may issue a COA “only if the applicant has made a substantial show-
ing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the
district court rejected Flasik’s claims on the merits, he “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitu-
tional claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000),
or that “the issues presented are adequate to deserve encouragement to pro-
ceed further,” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Because Flasik
has not met these standards with respect to the above-listed claims, his COA
motion is denied.
We construe Flasik’s motion for a COA with respect to his argument that
the district court should have held an evidentiary hearing as a direct appeal of
that issue. See Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016). We
AFFIRM. See Cullen v. Pinholster, 563 U.S. 170, 181−82, 185−86 (2011).
Case: 19-10008 Document: 00515331466 Page: 2 Date Filed: 03/04/2020