Feist v. Davis

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-40245

HERBERT FEIST,

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. 1:18-CV-15

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

Herbert Feist, former Texas prisoner 318012, was convicted of
aggravated robbery in 1981 and sentenced to serve 40 years in prison. Now,
he moves this court for appointed counsel and for a certificate of appealability
(COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus
petition for want of exhaustion. He presents arguments concerning his
conviction, time calculation, parole, and recusal.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 2, 2020

Lyle W. Cayce
Clerk
Case: 19-40245 Document: 00515327864 Page: 1 Date Filed: 03/02/2020

No. 19-40245
2
A COA may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A movant
satisfies this standard by showing 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). Because Feist
has not met this standard, his COA motion and his motion for appointed
counsel are DENIED.
Finally, Feist contends that the district court erred by denying his § 2254
petition without conducting an evidentiary hearing. He is not required to
obtain a COA to appeal the denial of an evidentiary hearing; therefore, to the
extent he seeks a COA on this issue we construe his COA request “as a direct
appeal from the denial of an evidentiary hearing.” Norman v. Stephens, 817
F.3d 226, 234 (5th Cir. 2016). Because Feist’s substantive claims fail, we need
not address the merits of his evidentiary hearing claim. See id. The district
court’s denial of an evidentiary hearing is AFFIRMED.

Case: 19-40245 Document: 00515327864 Page: 2 Date Filed: 03/02/2020