     Case: 15-11004      Document: 00513718579         Page: 1    Date Filed: 10/14/2016




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

                                      No. 15-11004                           FILED
                                                                       October 14, 2016
                                                                        Lyle W. Cayce
CHARLES HENSLEY MITCHELL, II,                                                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. 3:13-CV-4754


Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
       Charles Hensley Mitchell, II, Texas prisoner # 1851936, moves for a
certificate of appealability (COA) to appeal the district court’s denial of his 28
U.S.C. § 2254 habeas corpus petition, which challenged his conviction of
aggravated assault with a deadly weapon. He also seeks a COA to appeal the
district court’s postjudgment denials of his motion for an evidentiary hearing
and his motion to alter or amend the judgment under Federal Rules of Civil


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-11004

Procedure 59(e). The district court denied a COA when it denied Mitchell’s
§ 2254 petition, but it did not address the need for a COA in connection with
the postjudgment rulings.
      To obtain a COA, a § 2254 petitioner 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). This means that for Mitchell’s claims of
prosecutorial misconduct and ineffective assistance of appellate counsel, which
the district court denied on the merits, Mitchell must “demonstrate that
reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). He fails to make such a showing. Mitchell also challenges the
district court’s finding that he procedurally defaulted his claim that the state
trial court’s refusal to give the jury an instruction on self-defense violated due
process, but he fails to show “that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id. Also,
Mitchell fails to show that reasonable jurists could debate whether, or agree
that, his challenge to the denial of his motion for partial summary judgment is
“adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S.
at 336 (internal quotation marks and citation omitted). Mitchell fails to brief,
and thus waived, his claims of ineffective assistance of trial counsel. Hughes
v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999). With respect to these claims,
we DENY a COA.
      A COA is required to appeal the denial of a Rule 59(e) motion in a habeas
case. Ochoa Canales v. Quarterman, 507 F.3d 884, 887-88 (5th Cir. 2007).
Because of the lack of a COA ruling by the district court on this issue and on
the postjudgment denial of an evidentiary hearing, we may assume without
deciding that we lack jurisdiction over these issues. See Rule 11(a), RULES



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                                  No. 15-11004

GOVERNING § 2254 CASES. However, we will decline to remand in order for the
district court to make the COA determination in the first instance if remand
would be futile and a waste of judicial resources. See United States v. Alvarez,
210 F.3d 309, 310 (5th Cir. 2000).
      Mitchell mailed his motion for an evidentiary hearing before the district
court denied his § 2254 petition. Even if this motion was not an unauthorized
successive, cf. Gonzalez v. Crosby, 545 U.S. 524, 532 & n.4 (2005), Mitchell fails
to show that his challenge to the denial of the motion is adequate to deserve
encouragement to proceed further, Miller-El, 537 U.S. at 336. To the extent
that Mitchell’s Rule 59(e) motion to alter or amend the judgment sought to
undo the district court’s denial of habeas relief on the merits, it was an
unauthorized successive petition that the district court lacked jurisdiction to
entertain. See Gonzalez v. Crosby, 545 U.S. 524, 532 & n.4 (2005); Williams v.
Thaler, 602 F.3d 291, 312 (5th Cir. 2010); Crone v. Cockrell, 324 F.3d 833, 836-
38 (5th Cir. 2003). To the extent that the Rule 59(e) motion challenged the
denial of Mitchell’s due process claim as procedurally defaulted, it was not a
successive § 2254 petition, but Mitchell needs a COA to proceed on appeal. See
§ 2253(c)(1)(B); see also Gonzalez, 545 U.S. at 532 & n.4; Cardenas v. Thaler,
651 F.3d 442, 443 (5th Cir. 2011). Because we discern no legal points arguable
on their merits regarding this aspect of the Rule 59(e) ruling, the attempt to
appeal that issue is frivolous, see Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983), and reasonable jurists could not debate whether it is adequate to
deserve encouragement to proceed further, see Miller-El, 537 U.S. at 336. With
respect to these postjudgment rulings, we DISMISS this matter for lack of
jurisdiction as remand would be futile. See Alvarez, 210 F.3d at 310.




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                                No. 15-11004

      We deny Mitchell’s request for appointment of counsel. See Schwander
v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985).
      COA DENIED IN PART AND DISMISSED IN PART.




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