     Case: 19-40303      Document: 00515417608         Page: 1    Date Filed: 05/15/2020




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

                                                                                FILED
                                      No. 19-40303                          May 15, 2020
                                                                           Lyle W. Cayce
JASON WAYNE FRIZZELL,                                                           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. 9:17-CV-26


Before SMITH, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Jason Wayne Frizzell, Texas prisoner # 1915199, was convicted of injury
to a child and received a 20-year sentence. He now seeks a certificate of
appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254
petition challenging this conviction. To obtain a COA, Frizzell must make “a
substantial showing of the denial of a constitutional right.”                      28 U.S.C.
§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483 (2000). In order to satisfy


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40303     Document: 00515417608     Page: 2   Date Filed: 05/15/2020


                                  No. 19-40303

this standard, he must demonstrate “that jurists of reason could disagree with
the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
      In his COA brief, Frizzell argues that the trial court’s refusal to grant
him pretrial access to legal research or to provide him with an investigator,
despite his waiver of his right to counsel, violated due process.        He also
contends that the evidence was insufficient to support his conviction. Frizzell
maintains that the federal district court should have ordered discovery so that
the respondent would have to provide trial exhibits that were not included in
the state record and which would have called into question witness credibility.
He has not made the requisite showing for the issuance of a COA. See id.
      In addition, Frizzell lists as an issue in his COA motion that the district
court erred in denying his § 2254 petition without first holding an evidentiary
hearing. He does not need a COA to challenge the denial of a motion for an
evidentiary hearing, and we construe his motion as a direct appeal of that
issue. See Norman v. Stephens, 817 F.3d 226, 234-35 (5th Cir. 2016). However,
his failure to brief the issue renders it abandoned.       See United States v.
Scroggins, 599 F.3d 433, 446-47; Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). Accordingly, we affirm the district
court’s denial of Frizzell’s motion for an evidentiary hearing.
      COA DENIED; AFFIRMED.




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