Andre Thomas v. Lorie Davis, Director, No. 17-70002 (5th Cir. 2018)

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The court issued a subsequent related opinion or order on April 23, 2021.

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Case: 17-70002 Document: 00514503590 Page: 1 Date Filed: 06/07/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-70002 United States Court of Appeals Fifth Circuit FILED June 7, 2018 ANDRE LEE THOMAS, Lyle W. Cayce Clerk 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. 4:09-CV-644 Before JONES, SOUTHWICK, and HIGGINSON, Circuit Judges. PER CURIAM:* Andre Lee Thomas, a Texas state prisoner, was convicted of capital murder and sentenced to death. The district court denied his Section 2254 petition and also denied him a Certificate of Appealability (“COA”). Here he moves for a COA on five issues: (1) whether the jury composition was tainted by racial bias and whether defense counsel was ineffective for failing to 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 17-70002 Document: 00514503590 Page: 2 Date Filed: 06/07/2018 No. 17-70002 question the allegedly biased jurors; (2) whether defense counsel was ineffective for not investigating Thomas’s competency to stand trial; (3) whether defense counsel was ineffective in rebutting the State’s voluntaryintoxication theory; (4) whether defense counsel was ineffective in presenting a mitigation defense in the penalty phase; and (5) whether execution of the severely mentally ill violates the Eighth Amendment. Without expressing any view on the merits, we conclude that reasonable jurists could disagree about the resolution of the first four issues. Therefore, we grant a COA on those issues. We deny a COA on the issue of whether execution of the severely mentally ill violates the Eighth Amendment. This issue is foreclosed under our precedent. The Clerk’s Office will set a briefing schedule. Motion for COA GRANTED IN PART AND DENIED IN PART. 2