     Case: 19-10003      Document: 00515427690         Page: 1    Date Filed: 05/26/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                      No. 19-10003
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            May 26, 2020

ERNEST BENTON,                                                             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 Northern District of Texas
                              USDC No. 2:16-CV-15


Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Ernest Benton, Texas prisoner # 1846243, has applied for a certificate of
appealability (COA) to appeal the denial of his 28 U.S.C. § 2254 petition.
Benton filed the § 2254 petition to challenge his jury trial convictions of
aggravated sexual assault of a child and indecency with a child.
       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,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10003     Document: 00515427690       Page: 2   Date Filed: 05/26/2020


                                  No. 19-10003

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
assessment 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.
      In reliance on Vela v. Estelle, 708 F.2d 954 (5th Cir. 1983), Benton
contends that the district court erred in determining that his jury misconduct
claim was unexhausted. He argues that he can establish cause and prejudice
to excuse the procedural default of the claim based on his trial counsel’s
ineffective assistance with respect to the jury misconduct issue, and he asserts
that he should have been granted an evidentiary hearing. He contends that
the district court erred by failing to liberally construe his pro se filings. Benton
also renews his claim that the evidence was insufficient to show that he
penetrated the sexual organ of the victim.
      Benton has failed to make the requisite showing. See Slack, 529 U.S. at
484. Accordingly, his request for a COA is DENIED. We construe Benton’s
motion for a COA with respect to the district court’s denial of an evidentiary
hearing as a direct appeal of that issue, see Norman v. Stephens, 817 F.3d 226,
234 (5th Cir. 2016), and AFFIRM, see Cullen v. Pinholster, 563 U.S. 170, 181,
185-86 (2011).




                                         2
