Smith v. Lumpkin, No. 19-20716 (5th Cir. 2020)

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Case: 19-20716 Document: 00515686436 Page: 1 Date Filed: 12/28/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 28, 2020 No. 19-20716 Lyle W. Cayce Clerk John Richard Smith, Petitioner—Appellant, versus Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee. Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18-CV-3578 Before Willett, Ho, and Duncan, Circuit Judges. Per Curiam:* A jury convicted John Richard Smith, Texas prisoner # 2037971, of murder, and he was sentenced to 58 years in prison. He seeks a certificate of appealability (COA) to challenge the district court’s denial of his 28 U.S.C. § 2254 petition in which he raised claims of prosecutorial misconduct and * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 19-20716 Document: 00515686436 Page: 2 Date Filed: 12/28/2020 No. 19-20716 ineffective assistance of trial counsel. Smith also alleges that the district court erred by denying habeas relief without conducting an evidentiary hearing. To obtain a COA, Smith must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the claims are rejected on the merits, the prisoner must “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” or that the issues presented “deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citation omitted). Smith has failed to meet this standard. As Smith fails to make the required showing for a COA on his constitutional claims, we do not reach whether the district court erred by denying an evidentiary hearing. See United States v. Davis, 971 F.3d 524, 534-35 (5th Cir. 2020). Accordingly, Smith’s COA motion is DENIED. 2

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