     Case: 12-40552       Document: 00512413902         Page: 1     Date Filed: 10/18/2013




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

                                                                            FILED
                                                                         October 18, 2013
                                     No. 12-40552
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

TIMOTHY LEE MULLINS,

                                                  Petitioner-Appellant

v.

WILLIAM STEPHENS, 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. 6:11-CV-318


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Timothy Lee Mullins, Texas prisoner # 1530696, appeals the dismissal of
his 28 U.S.C. § 2254 petition, in which he challenged his conviction and life
sentence for murder. Mullins challenges the district court’s denial of relief on
his claims that (1) trial counsel rendered ineffective assistance in failing to
investigate his mental health history and in abandoning the insanity defense at
trial, (2) trial counsel rendered ineffective assistance in failing to present any


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40552     Document: 00512413902       Page: 2   Date Filed: 10/18/2013

                                   No. 12-40552

mitigating evidence at the punishment phase, (3) he was denied due process
when the trial court did not appoint a psychiatrist for the defense, and (4) his
appellate counsel rendered ineffective assistance in failing to raise on appeal the
issue that the trial court abused its discretion in not appointing a psychiatrist
for the defense. To the extent that Mullins also raises the issues that his counsel
rendered ineffective assistance in failing to challenge his confession and in
failing to object to prosecutorial misconduct, the issues are beyond the scope of
the certificate of appealability, and this court lacks jurisdiction to consider them.
See Simmons v. Epps, 654 F.3d 526, 535 (5th Cir. 2011), cert. denied, 132 S. Ct.
2374 (2012).
      In reviewing the denial of § 2254 relief, this court reviews issues of law de
novo and findings of fact for clear error, applying the same deference to the state
courts’ decision as the district court under the Antiterrorism and Effective Death
Penalty Act. Ortiz v. Quarterman, 504 F.3d 492, 496 (5th Cir. 2007). Because
the Texas Court of Criminal Appeals’ rejection of Mullins’s claims of ineffective
assistance of trial and appellate counsel was not contrary to and did not involve
an unreasonable application of Strickland v. Washington, 466 U.S. 668, 687
(1984), and did not involve “an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding,” the district court did
not err in denying Mullins habeas relief on these claims. § 2254(d); see also
Harrington v. Richter, 131 S. Ct. 770, 787-89 (2011). The district court also did
not err in denying relief on Mullins’s claim that the state trial court violated due
process in not appointing a psychiatrist for the defense pursuant to Ake v.
Oklahoma, 470 U.S. 68, 76 (1985). See § 2254(d); Woodward v. Epps, 580 F.3d
318, 332 (5th Cir. 2009).
      AFFIRMED.




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