     Case: 19-10571      Document: 00515511187         Page: 1    Date Filed: 07/31/2020




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


                                      No. 19-10571
                                                                              FILED
                                                                          July 31, 2020
                                                                         Lyle W. Cayce
KENNIS EARL GATSON,                                                           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 Northern District of Texas
                              USDC No. 3:18-CV-974


Before DENNIS, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Kennis Earl Gatson, Texas prisoner # 1702500, was convicted of
aggravated sexual assault with a deadly weapon, and he is serving a 75-year
sentence. He now seeks a certificate of appealability (COA) to appeal the
denial of his 28 U.S.C. § 2254 petition challenging this conviction. Gatson
maintains that he has established his actual innocence, which would permit
the district court to consider his procedurally defaulted claim that trial counsel


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10571    Document: 00515511187       Page: 2   Date Filed: 07/31/2020


                                 No. 19-10571

rendered ineffective assistance by failing to pursue DNA testing prior to trial.
In addition, he contends that counsel rendered ineffective assistance by failing
to investigate and call witnesses and that the attorney failed to put the State’s
case to meaningful adversarial testing. Gatson also challenges the district
court’s failure to hold an evidentiary hearing.
      To obtain a COA, Gatson 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). To satisfy that burden, he must show “that reasonable jurists
would find the district court’s assessment of the constitutional claims
debatable or wrong,” Slack, 529 U.S. at 484, or that the issues he presents “are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 327 (2003). With respect to claims dismissed on procedural
grounds, Gatson is required to demonstrate “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.
Gatson has not made the requisite showing. Accordingly, his motion for a COA
is DENIED. We construe the motion for a COA with respect to the district
court’s failure 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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