     Case: 19-50404      Document: 00515378203         Page: 1    Date Filed: 04/09/2020




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

                                                                                FILED
                                      No. 19-50404                           April 9, 2020
                                                                           Lyle W. Cayce
MARCUS TYLER SHEFFIELD,                                                         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 Western District of Texas
                             USDC No. 5:18-CV-385


Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Marcus Tyler Sheffield, Texas prisoner # 2034529, was convicted in 2015
by a jury of two counts of sexual assault of a child and was sentenced to 10
years of imprisonment on both counts to run concurrently. He now moves for
a certificate of appealability (COA) to appeal the district court’s denial of his
28 U.S.C. § 2254 application.
       Sheffield argues that his statement to police during an interview was
obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). He also


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50404     Document: 00515378203      Page: 2    Date Filed: 04/09/2020


                                  No. 19-50404

argues that his trial counsel was ineffective for failing to investigate and to call
Dr. William Rogers as a witness about his treatment of Sheffield for a disorder
that affected Sheffield’s mental and physical development.
      A COA may be issued “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When
the district court rejects constitutional claims on their merits, a COA should
issue only if the petitioner “demonstrate[es] 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); see Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
      Sheffield has not made the requisite showing. Accordingly, his request
for a COA is DENIED. His motion to proceed in forma pauperis on appeal is
also DENIED.
      To the extent Sheffield argues that the district court erred in denying
him appointed counsel, an order denying a motion for appointment of counsel
in a habeas proceeding is not a “final order” that disposes of the merits of a
habeas corpus proceeding for purposes of § 2253(c), and therefore is not subject
to the COA requirement. Harbison v. Bell, 556 U.S. 180, 183 (2009). Because
Sheffield has not shown that the district court erred in denying his request for
appointment of counsel, we AFFIRM in part. See Pennsylvania v. Finley,
481 U.S. 551, 555 (1987); Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir.
1985).




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