     Case: 16-10159   Document: 00514629588     Page: 1   Date Filed: 09/05/2018




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


                                 No. 16-10159                        FILED
                                                             September 5, 2018
                                                                Lyle W. Cayce
VICTOR J. BLACK,                                                     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


Before KING, SOUTHWICK, and HO, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      A Texas inmate filed an application for federal habeas relief, which the
district court denied.    The court also denied a certificate of appealability
(“COA”). This court granted a COA on two issues that had not been presented
to the district court. We now VACATE the COA and DISMISS this appeal.


                         PROCEDURAL BACKGROUND
      Texas inmate Victor J. Black filed an application under 28 U.S.C. § 2254
in the United States District Court for the Northern District of Texas. He later
was allowed to submit an amended application that collected all his claims. He
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                                 No. 16-10159
did so in January 2015. Among Black’s claims was that his trial counsel’s
racial bias and conflicting interests rendered counsel’s representation
unreasonable and deficient. He broadly described that claim as being governed
by Strickland v. Washington, 466 U.S. 668 (1984) and, alternatively, by Cuyler
v. Sullivan, 446 U.S. 335 (1980). Black did not cite a key Supreme Court
decision, United States v. Cronic, 466 U.S. 648 (1984). We will discuss each of
those cases later along with the significance of Black’s reliance on Strickland
and Cuyler but not Cronic.
      In two different reports, a magistrate judge to whom Black’s application
was referred recommended denying all relief. Black filed objections and made
a general request for a COA at the end of his objections. In January 2016, the
district court accepted the recommendations and denied all relief. It also
issued a blanket denial of a COA.
      Black appealed the January 2016 decision to this court. While the appeal
was pending, Black returned to district court claiming newly discovered
evidence and seeking relief from judgment under Federal Rule of Civil
Procedure 60(b).     The district court, agreeing with the magistrate judge’s
recommendation, deemed the filing to be a successive Section 2254 application
and transferred it to this court. There was no additional discussion of a COA.
      In April 2017, a motions judge of this court denied Black a COA on seven
claims and also refused to supplement the record with the evidence presented
in the successive application. In the same order, Black was granted a COA on
two issues: (1) whether the claim that trial counsel used abusive and racially-
charged language against him and threatened to sabotage his case if he did not
accept the State’s 10-year plea bargain was governed by Cronic, and, if so,
(2) whether he was entitled to an evidentiary hearing on this claim to
determine whether it was substantial enough to excuse the procedural default.


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                                  No. 16-10159
                                 DISCUSSION
      We have held that “the absence of a prior determination by the district
court on whether a COA should issue pose[s] a jurisdictional bar to this court’s
consideration of whether to grant or deny a COA.” Cardenas v. Thaler, 651
F.3d 442, 445 (5th Cir. 2011) (collecting cases). That simply means “before we
may consider a petitioner’s application for a COA on a particular issue, that
petitioner must first submit his request to the district court and have that
request denied.” Goodwin v. Johnson, 224 F.3d 450, 459 n.6 (5th Cir. 2000).
“The rule contemplates that the district court will make the first judgment
whether a COA should issue and on which issues, and that the circuit court
will be informed by the district court’s determination in its own
decisionmaking.” Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997).
      The State argues we were without jurisdiction to grant Black a COA on
the two Cronic issues. The State is correct that Black did not request a COA
on those specific issues. He did, though, make a general request for a COA.
The portion of the district court’s order denying a COA incorporated by
reference the magistrate judge’s report and recommendation, articulated the
COA standard, and held that Black had not met it.
      We see two questions to be answered as to the COA. (1) If an issue was
not presented to the district court or for some other reason a COA on that issue
was never denied, is a grant of a COA by this court valid, allowing us to reach
the issue? (2) If the answer to the first question is in the negative, did Black
sufficiently raise the Cronic issue in district court?
      Of course, a judge of this court has already granted a COA on the
relevant issue. Nonetheless, because a ruling by a motions judge in the initial
stages of an appeal is not binding on the later merits panel, we have the
responsibility to determine whether the significant ruling here is valid. Newby
v. Enron Corp., 443 F.3d 416, 419 (5th Cir. 2006).
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       (1) Court of appeals grant of a COA on issues not raised in district court
       The complexities we face arise from the Antiterrorism and Effective
Death Penalty Act, or AEDPA, which created the COA process effective in April
1996. Slack v. McDaniel, 529 U.S. 473, 478 (2000). The relevant codified
section of AEDPA is only the initial source for understanding the
requirements; it discusses the need for a court of appeals to issue a COA and
does not require a ruling by the district court:

              Unless a circuit justice or judge issues a certificate of
       appealability, an appeal may not be taken to the court of appeals
       from – (A) the final order in a habeas corpus proceeding in which
       the detention complained of arises out of process issued by a State
       court.
28 U.S.C. § 2253(c)(1). 1 Further, a COA should not issue absent “a substantial
showing of the denial of a constitutional right.” Id. § 2253(c)(2).
       The initial court rule guiding a district court’s consideration of a COA
was Federal Rule of Appellate Procedure 22, which concerns appeals in habeas
corpus proceedings.        It was amended by AEDPA.               The first post-AEDPA
version of Rule 22(b) required the district court to address the COA question
before an appeal could be taken:
       If an appeal is taken by the applicant, the district judge who
       rendered the judgment shall either issue a certificate of
       appealability or state the reasons why such a certificate should not
       issue. The certificate or the statement shall be forwarded to the
       court of appeals with the notice of appeal and the file of the
       proceedings in the district court. If the district judge has denied
       the certificate, the applicant for the writ may then request
       issuance of the certificate by a circuit judge.




       1Though the COA process was adopted by AEDPA, the former version of Section 2253
required a “certificate of probable cause” prior to a habeas petitioner’s appeal from district
court. See Muniz v. Johnson, 114 F.3d 43, 44 (5th Cir. 1997).
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FED. R. APP. P. 22(b)(1) (1997) (analyzed in Muniz v. Johnson, 114 F.3d 43, 45
(5th Cir. 1997)).
      In 2009, the Advisory Committee on the Civil Rules explained that year’s
amendment to Rule 22. “The requirement that the district judge who rendered
the judgment either issue a certificate of appealability or state why a certificate
should not issue has been deleted from subdivision (b)(1).” FED. R. APP. P.
22(b)(1), advisory committee’s note to 2009 amendment.              The Advisory
Committee stated that the requirements were now in “Rule 11(a) of the Rules
Governing Proceedings under 28 U.S.C. § 2254.” Id.
      Habeas Rule 11(a) now states that a “district court must issue or deny a
certificate of appealability when it enters a final order adverse to the
applicant.” Rule 11(a), RULES GOVERNING § 2254 CASES. In addition, a grant
of a COA “must state the specific issue or issues” that were found to justify the
COA, but no comparable requirement exists to identify the issues considered
in denying a COA. See id. “If the [district] court denies a certificate, the parties
may not appeal the denial but may seek a certificate [of appealability] from the
court of appeals under Federal Rule of Appellate Procedure 22.” Id.
      We detail this progression in statutory and rule-based commands in
order to assure ourselves that the caselaw we will discuss is applicable to Rule
11(a) of the habeas rules. We see no meaningful distinction between this
current source of the relevant COA requirements and the earlier version of
Appellate Rule 22. This court has previously discussed these rules changes
and refused to conclude they had any effect on our caselaw. See, e.g., Cardenas,
651 F.3d at 443–45. We more explicitly state now that the effect of the relevant
language in Rule 11 of the habeas rules is the same as that formerly in
Appellate Rule 22.
      One of our earliest helpful precedents stated that Rule 22 required the
district court to deny a COA before a prisoner could receive a COA from this
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                                 No. 16-10159
court. Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998) (citing Muniz,
114 F.3d at 45). That allows “the circuit court [to] be informed by the district
court’s determination in its own decisionmaking.” Muniz, 114 F.3d at 45.
      Importantly, we have held “the lack of a ruling on a COA in the district
court causes this court to be without jurisdiction to consider the appeal.”
Whitehead, 157 F.3d at 388. Here, of course, there is a district court ruling —
that court denied a COA in general terms. Yet if we conclude that the district
court’s denial did not encompass the specific issues on which a COA was
granted by this court, are we also without jurisdiction to grant a COA on such
issues? Yes we are, as granting a “COA in the circuit court on issues not
previously denied COA in the district court” is beyond our jurisdiction. Brewer
v. Quarterman, 475 F.3d 253, 255 (5th Cir. 2006). Our statement that the
Brewer opinion classified the defect as a jurisdictional one is due to the
parenthetical description it used for a precedent on which it relied, namely:
“jurisdiction is not vested in this Court because the district court has not yet
considered whether COA should issue.”           Id. (quoting United States v.
Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997).
      Our Youngblood opinion dealt with an appeal in which no COA had been
requested in district court. Youngblood, 116 F.3d at 1113. We conclude the
same reasoning applies when a COA was requested but not on the issue being
pursued in the appellate court. Consistent with that view is that absent “a
ruling on whether a petitioner is entitled to a COA that covers a specific issue,
we would dismiss without prejudice.” Goodwin, 224 F.3d at 459 & n.6.
      Therefore, this court has no jurisdiction to issue a COA on an issue on
which the district court did not deny a COA.
      We now examine whether the issues for which a COA was granted were
covered by the district court’s COA ruling.


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                                  No. 16-10159
      (2) The Cronic issue in district court
      Our focus on specific issues being covered by the COA denial raises the
question of whether it matters that the district court denied a COA without
identifying any issues. The district court did not mention Black’s claims other
than by referring to the Report and Recommendation of the magistrate judge.
The denial was in the general terms of Black’s not being entitled to a COA.
      One part of the analysis comes from the fact that the “review of the denial
of a COA is certainly not limited to grounds expressly addressed by the court
whose decision is under review.” Tharpe v. Sellers, 138 S. Ct. 545, 546 (2018).
Another relevant point is that when a district court sua sponte denies a COA
without indicating the specific issues, we have treated each of the issues raised
in the habeas petition as included within the denial.             E.g., Haynes v.
Quarterman, 526 F.3d 189, 192, 196–98 (5th Cir. 2008). We see no reason to
treat this district court’s blanket COA denial any differently.
      Accordingly, we hold that the court denied a COA for each issue Black
presented in his habeas application.
      The remaining question is whether the particular issues on which Black
wants us to issue a COA were sufficiently presented to the district court and
were covered by that court’s denial of a COA. Deciding which issues were
raised in Black’s application is complicated by Black’s status as an indigent
prisoner handling his own suit. We have held that a pro se “habeas petition
need only set forth facts giving rise to the cause of action.” Guidroz v. Lynaugh,
852 F.2d 832, 834 (5th Cir. 1988) (quoting Bounds v. Smith, 430 U.S. 817, 825
(1977)). Liberal construction of a prisoner’s Section 2254 application also
means that “the substance of the relief sought by a pro se pleading [controls],
not the label that the petitioner has attached to it.” Hernandez v. Thaler, 630
F.3d 420, 426 (5th Cir. 2011).


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                                   No. 16-10159
      In one case, the habeas petitioner alleged that “[h]ad defense counsel
physically examined the ballistics-related evidence, or engaged competent
experts to do so,” facts contradictory to those presented at trial would have
been discovered. Soffar v. Dretke, 368 F.3d 441, 469 (5th Cir. 2004), amended
on reh’g in part, 391 F.3d 703 (5th Cir. 2004). Soffar made that allegation in
the context of claiming Brady v. Maryland, 373 U.S. 83 (1963) was violated by
the State’s “failing to disclose certain evidence, including evidence indicating
that only four spent bullets had been recovered from the crime scene.” Id. at
468–69. “Although th[e] specific allegation is found under [the petitioner’s]
third ground for habeas relief, i.e., his Brady claim, there is nothing in our
habeas jurisprudence that requires a party to raise a constitutional issue on
appeal under a particular heading.” Id. at 469. We therefore concluded that
he had sufficiently claimed ineffective assistance of counsel “as it relates to
defense counsel’s failure to identify and develop the ballistics evidence.” Id.
      We now examine Black’s habeas application. Black clearly did not seek
habeas relief in district court specifically under Cronic. His contention is that
when liberally construed his pleadings show “he raised a constructive/actual
denial of counsel and ineffective assistance of counsel claim.”
      Resolving whether the Cronic claim was sufficiently presented in district
court starts with recognizing that such a claim is substantially different than
a Strickland claim — one of the authorities Black did cite. Both are based on
the Sixth Amendment right to counsel, but the distinction between “the rule of
Strickland and that of Cronic . . . is not of degree but of kind.” Bell v. Cone,
535 U.S. 685, 697 (2002).       A key question in determining if a Cronic or
Strickland claim has been raised is “whether the accused asserts that he
received incompetent counsel, or none at all.” Childress v. Johnson, 103 F.3d
1221, 1230 (5th Cir. 1997).      Stated another way, the distinction between
allegations of “bad and no lawyering is critical . . . because very different results
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                                      No. 16-10159
flow from the label which is attached to the conduct in question.” Woodard v.
Collins, 898 F.2d 1027, 1028 (5th Cir. 1990). 2
       The distinction is significant because setting aside a conviction for
ineffective assistance of counsel under Strickland, which requires proof “of
incompetence and prejudice, is made on a case by case basis.” Id. Denial of
counsel altogether, actually or constructively, which is a Cronic claim, requires
that conviction be “overturned because prejudice is presumed.” Id.                    Thus,
Cronic presents a different evidentiary and analytical mix than does
Strickland. See McInerney v. Puckett, 919 F.2d 350, 352–53 (5th Cir. 1990).
       Black’s habeas filings are replete with allegations that his trial counsel
was “incompetent,” “unreasonable,” and “rendered deficient performance.”
Even liberally construed, his pleadings do not contend he was constructively
denied counsel. For example, Black asked the district court to find both “that
trial counsel performed unreasonably under racial bias and conflicting
interests” and that Black had “demonstrated ‘deficient performance’ by trial
counsel’s racial bias and conflict of interests.” He also argued that there could
not be “any reasonable trial strategy in trial counsel using the type of threats
that Black has alleged that [trial counsel] used and of representing [Black]
with a racial bias.”
       The closest Black came to raising a Cronic claim was, first, in a section
of his habeas application where he cited to a decision that applied Cronic, see



       2 Like a Cronic claim, a Cuyler claim allows for a presumption of prejudice. See Beets
v. Scott, 65 F.3d 1258, 1265 (5th Cir. 1995) (en banc). “[P]rejudice is presumed if the
defendant shows that an actual conflict of interest adversely affected his lawyer’s
performance.” Id. (citing Cuyler, 446 U.S. at 348). We have limited Cuyler’s applicability to
cases concerning conflicts arising from an attorney’s representation of multiple clients. See
id. at 1265–66. Key for our purposes here is that Cuyler also concerns bad lawyering, not the
effective absence of a lawyer. Our discussion of the distinction between Strickland and
Cronic would thus apply with equal vigor to the relevant distinction between Cuyler and
Cronic.
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                                  No. 16-10159
Frazer v. United States, 18 F.3d 778 (9th Cir. 1994), and, second, in the
objections he filed to the magistrate judge’s report and recommendation. That
citation does not help, though, because the section of the Frazer opinion that
Black quoted and discussed at length did not pertain to Cronic. Instead, Black
cited Frazer to support his claim that counsel performed with a conflict of
interest. As to Black’s objections to the magistrate judge’s report, he argued
that trial counsel had “not made any significant decision in the exercise of
reasonable professional judgment” and that he had “presented specific factual
allegations showing counsel did nothing.” These and similar statements, even
in liberally construed pro se pleadings, are “mere conclusory allegations on a
critical issue [and] are insufficient to raise a constitutional issue.” United
States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993) (citation omitted).
      In summary, Black did not present to the district court, in any manner
identifiable by that court, a claim that he was constructively denied counsel.
The district court, as a result, cannot be said to have considered the Cronic
issues on which our motions judge granted a COA. The COA was thus granted
without jurisdiction.
      We VACATE the COA and DISMISS this appeal, without prejudice, for
lack of appellate jurisdiction.




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                                 No. 16-10159
KING, Circuit Judge, concurring:
      I concur in the judgment and in Judge Southwick’s opinion. Our caselaw
has not grappled with the impact of Gonzalez v. Thaler, 565 U.S. 134 (2012),
on our characterization of the district-court-first rule as jurisdictional. In my
view, the Supreme Court’s opinion in Gonzalez seriously calls that holding into
question. Nonetheless, we are bound by the rulings of previous post-Gonzalez
panels to continue to apply our existing caselaw.




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