Lewis v. Davis

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10225

JOE LEWIS,

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-2745

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

Joe Lewis, Texas prisoner # 01975017, moves for a certificate of
appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254
petition. We construe his challenge to the district court’s tacit refusal to
conduct an evidentiary hearing as an appeal of that issue. See Norman v.
Stephens, 817 F.3d 226, 234 (5th Cir. 2016). A jury convicted Lewis of drug
crimes, and he was sentenced to 30 years in prison.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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

Lyle W. Cayce
Clerk
Case: 19-10225 Document: 00515405435 Page: 1 Date Filed: 05/05/2020

No. 19-10225
2
We decline to consider Lewis’s claim that appellate counsel was
ineffective because Lewis intentionally declined to raise that claim in his
§ 2254 petition. See Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir. 2003).
As to the contention that trial counsel was ineffective for failing to investigate
an insanity defense and to call a psychiatrist to support that defense, Lewis
fails to “demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). He thus fails to make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). His
motion for a COA is DENIED. The denial of an evidentiary hearing is
AFFIRMED.
Case: 19-10225 Document: 00515405435 Page: 2 Date Filed: 05/05/2020