Albarado v. Davis

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10544

JUAN MANUEL ALBARADO,

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. 1:17-CV-38

Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM:
*

Juan Manuel Albarado, Texas prisoner #01452106, moves for a
certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2254
application challenging his conviction of murder. He contends that the district
court erred by dismissing as time-barred his claims that (1) the trial court
lacked jurisdiction over him because the juvenile court committed numerous
errors before it improperly waived its own jurisdiction, (2) the State suppressed

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 24, 2020

Lyle W. Cayce
Clerk
Case: 19-10544 Document: 00515357008 Page: 1 Date Filed: 03/24/2020

No. 19-10544
2
exculpatory and mitigating evidence, (3) he is actually innocent, (4) his trial
counsel provided ineffective assistance in several respects, including by failing
to challenge the juvenile-court errors and the jurisdiction of the trial court, and
(5) his appellate counsel rendered ineffective assistance by failing to challenge
the juvenile-court errors and the jurisdiction of the trial court.
A COA may be issued only if the applicant “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack
v. McDaniel, 529 U.S. 473, 484 (2000). 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, 529 U.S. at 484. Albarado fails to make the necessary showing.
To the extent that he requests a COA regarding the district court’s denial of
an evidentiary hearing, we construe his motion 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, 185-86 (2011).
Accordingly, Albarado’s motion for leave to file a supplemental brief is
GRANTED, his motions for a COA and for a stay of the proceedings are
DENIED, and the district court’s denial of an evidentiary hearing is
AFFIRMED.
Case: 19-10544 Document: 00515357008 Page: 2 Date Filed: 03/24/2020