Case: 19-11052        Document: 00515527192             Page: 1      Date Filed: 08/14/2020




             United States Court of Appeals
                  for the Fifth Circuit                                  United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          August 14, 2020
                                     No. 19-11052
                                                                            Lyle W. Cayce
                                                                                 Clerk
 Pat Dee Leatherman,

                                                                Petitioner—Appellant,

                                          versus

 Bobby Lumpkin, Director, Texas Department of
 Criminal Justice, Correctional Institutions Division,

                                                                Respondent—Appellee.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 4:19-CV-86


 Before HIGGINBOTHAM, SMITH, and OLDHAM, Circuit Judges.
 Per Curiam:*
         Pat Dee Leatherman, Texas prisoner # 01129162, moves for a
 certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2254
 application challenging his guilty-plea conviction of murder. He contends
 that the district court erred by dismissing as time barred, and without


         *
          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 not be published and is not precedent except under the limited circumstances set forth in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: 19-11052      Document: 00515527192         Page: 2     Date Filed: 08/14/2020




                                   No. 19-11052


 conducting discovery or holding an evidentiary hearing, his claims that (1) his
 trial counsel rendered ineffective assistance by failing to investigate and
 subpoena favorable witnesses, (2) the State violated Brady v. Maryland, 373
 U.S. 83 (1963), by withholding a recording of an exonerative phone call, (3)
 he is actually innocent, and (4) the State violated his due process rights by
 using as evidence against him an audio recording of a 911 call in which he
 confessed, while intoxicated, to the murder.
        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); see
 Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a district court has
 denied a request for habeas relief on procedural grounds, the prisoner must
 show “that jurists of reason would find it debatable whether the petition
 states a valid claim of the denial of a constitutional right and that jurists of
 reason would find it debatable whether the district court was correct in its
 procedural ruling.” Slack, 529 U.S. at 484. Leatherman fails to make the
 necessary showing. When an applicant’s “constitutional claims fail” to
 make the necessary showing for a COA, “we do not address the merits of
 [the] request for an evidentiary hearing.” Norman v. Stephens, 817 F.3d 226,
 234 (5th Cir. 2016).
        Accordingly, Leatherman’s motions for a COA, appointment of
 counsel, to compel the production of both test results and withheld evidence,
 and for release pending appeal are DENIED.




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