     Case: 18-70009      Document: 00514691721         Page: 1    Date Filed: 10/22/2018




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

                                                                                FILED
                                      No. 18-70009                       October 22, 2018
                                                                           Lyle W. Cayce
ANIBAL CANALES, JR.,                                                            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. 2:03-CV-69


Before HIGGINBOTHAM, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Anibal Canales moves for a certificate of appealability (“COA”) to appeal
the denial of his 28 U.S.C. § 2254 petition challenging his sentence for capital
murder. In 2014, this court remanded the case to the district court for
consideration of Canales’s Wiggins claim for ineffective assistance of counsel
during the sentencing phase of his trial for failing to develop and present



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 18-70009
mitigating evidence. Finding that Canales had established cause to excuse his
procedural default, the panel directed the district court to consider whether
Canales could prove prejudice as a result of his trial counsel’s deficient
performance at sentencing, and if so, to consider the merits of his habeas
petition. 1 On remand, the district court determined that Canales had not
shown prejudice under Strickland 2 on the merits of his ineffective assistance
claim or prejudice to excuse the procedural default. The court went on to deny
a COA, determining that reasonable jurists could not debate the denial of
Canales’s § 2254 petition.
      A state prisoner whose petition for a writ of habeas corpus is denied by
the district court does not enjoy an absolute right to appeal and must first
secure a COA. 3 A COA may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 4 Consideration of an
application for a COA “is not coextensive with a merits analysis” and the “only
question is whether the applicant has shown 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.’” 5 Our examination is limited at this stage
“‘to a threshold inquiry into the underlying merit of [the] claims’ and [we] ask
‘only if the District Court’s decision was debatable.’” 6
      In his application, Canales contends that the district court dismissed the
new mitigation evidence as “double-edged” and failed to meaningfully reweigh
that evidence in the context of the existing mitigation and aggravation



      1 Canales v. Stephens, 765 F.3d 551, 571 (5th Cir. 2014).
      2 Strickland v. Washington, 466 U.S. 668 (1984).
      3 Buck v. Davis, 137 S. Ct. 759, 773 (2017); 28 U.S.C. § 2253(c)(1).
      4 28 U.S.C. § 2253(c)(2).
      5 Buck, 137 S.Ct. at 773 (quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)).
      6 Id. at 774 (quoting Miller-El, 537 U.S. at 327).

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                                         No. 18-70009
evidence. Canales has made a sufficient showing that jurists of reason could
debate the district court’s conclusion that Canales failed to show prejudice to
overcome a default of his Wiggins claim and his entitlement to relief.
Accordingly, a COA is GRANTED with respect to that issue. We will allow for
additional briefing now that a COA has been granted; however, the parties
should avoid repetition and, if they wish, may rest on their briefs.7 Canales
should file any additional briefing on this issue within thirty days of this
order, and the State may respond within thirty days thereof. Extensions
will be granted only by order of this panel for exceptional circumstances
shown.




      7   See, e.g., Butler v. Stephens, 600 F. App’x 246, 248 n.4 (5th Cir. 2015) (per curiam).
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