Anthony Webb v. Lorie Davis, Director ( 2020 )

Case: 19-50468 Document: 00515482846 Page: 1 Date Filed: 07/09/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-50468
July 9, 2020
Summary Calendar
Lyle W. Cayce
Clerk
ANTHONY KINTA WEBB,
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 Western District of Texas
No. 6:18-CV-270
Before HIGGINBOTHAM, SMITH, and OLDHAM, Circuit Judges.
PER CURIAM: *
Anthony Webb, Texas prisoner #2077771, moves for a certificate of
*Pursuant to 5TH CIRCUIT RULE 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should not be published and is not precedent except under the limited circumstances set forth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 5TH CIRCUIT RULE 47.5.4.
Case: 19-50468 Document: 00515482846 Page: 2 Date Filed: 07/09/2020
No. 19-50468
appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 petition chal-
lenging his conviction of assault by occlusion and the associated sentence. To
obtain a COA, a petitioner must make “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). If the district court denies relief on the merits, the petitioner
must establish that reasonable jurists would find the district court’s assess-
ment of the claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000). If relief is denied on procedural grounds, a COA should issue if the
petitioner demonstrates, at least, that jurists of reason would find it debatable
whether the application “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.Webb contends that his right to a speedy trial was violated and that
the trial court violated his due process rights by failing to instruct the jury on
a lesser-included offense. He maintains that the evidence was insufficient to
support his conviction and that the district court erred in dismissing his claim
of insufficient evidence on procedural grounds. Webb asserts that trial counsel
was ineffective in several respects and that appellate counsel was ineffective
for failing to challenge the enhancement of his sentence on account of a prior
conviction. He also asserts that the prosecution violated his due process rights
by failing to correct false testimony and violated Brady v. Maryland, 373 U.S.
83 (1963). Because he has failed to make the requisite showing on any of the
above claims, the request for a COA is DENIED. See Slack, 529 U.S. at 484.
Webb also contends that the district court erred by failing to conduct
an evidentiary hearing. To the extent that Webb seeks a COA on that issue,
his request is construed “as a direct appeal from the denial of an evidentiary
hearing.” Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016). Because
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Case: 19-50468 Document: 00515482846 Page: 3 Date Filed: 07/09/2020
No. 19-50468
Webb has failed to demonstrate that the district court abused its discretion in
denying an evidentiary hearing, we AFFIRM. See Cullen v. Pinholster,
563 U.S. 170, 185−86 (2011); Norman, 817 F.3d at 235. Webb’s motion for the
appointment of counsel is DENIED.
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