Case: 19-50040       Document: 00515527924             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. 19-50040                       Lyle W. Cayce
                                                                            Clerk

 Christopher Allen Phillips,

                                                               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 Western District of Texas
                             USDC No. 6:18-CV-4


 Before Southwick, Willett, and Ho, Circuit Judges.
 Per Curiam:*
        Christopher Allen Phillips, Texas prisoner # 1790816, moves for a
 certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2254
 petition challenging his conviction of aggravated robbery. He also moves for
 amendment of his COA brief and for the appointment of counsel.


        *
           Pursuant to 5TH CIRCUIT RULE 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 should not be published and is not precedent except under the limited circumstances set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 CIRCUIT RULE 47.5.4.
Case: 19-50040      Document: 00515527924          Page: 2     Date Filed: 08/14/2020




                                   No. 19-50040


        The district court denied relief on the claims in Phillips’s original
 § 2254 petition on the merits and the claims in his supplemental § 2254
 petition as time barred. Phillips contends that his trial counsel provided
 ineffective assistance on multiple grounds; the prosecutor engaged in
 misconduct by presenting false testimony at trial; and the district court erred
 by declining to conduct an evidentiary hearing. He also contends that the
 district court erred in determining that his claim that the trial court abused
 its discretion in admitting the audio recording into evidence was time barred.
        To obtain a COA, Phillips must make “a substantial showing of the
 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v.
 Cockrell, 537 U.S. 322, 336 (2003). 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 v. McDaniel, 529 U.S. 473, 484 (2000). When constitutional claims
 have been rejected on the merits, the prisoner must show “that reasonable
 jurists would find the district court’s assessment of the constitutional claims
 debatable or wrong.” Id.
        By not briefing his claims that the district court erred in denying relief
 on his claims that the prosecution withheld evidence of a plea bargain and
 that counsel’s cumulative errors deprived him of a fair trial, Phillips has
 waived the issues. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999)
 (“[i]ssues not raised in the brief filed in support of [a] COA application are
 waived”).
        On his briefed claims, Phillips has not made the necessary showing.
 Accordingly, his motions for a COA and for the appointment of counsel are
 DENIED. His motion for amendment of his COA brief is GRANTED.




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Case: 19-50040     Document: 00515527924        Page: 3    Date Filed: 08/14/2020




                                 No. 19-50040


       We construe the motion for a COA with respect to the district court’s
 refusal to hold an evidentiary hearing as a direct appeal of that issue, see
 Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016), and AFFIRM.




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