     Case: 17-70002      Document: 00514503590         Page: 1    Date Filed: 06/07/2018




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

                                      No. 17-70002
                                                                           Fifth Circuit

                                                                         FILED
                                                                      June 7, 2018

ANDRE LEE THOMAS,                                                   Lyle W. Cayce
                                                                         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. 4:09-CV-644


Before JONES, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Andre Lee Thomas, a Texas state prisoner, was convicted of capital
murder and sentenced to death. The district court denied his Section 2254
petition and also denied him a Certificate of Appealability (“COA”). Here he
moves for a COA on five issues: (1) whether the jury composition was tainted
by racial bias and whether defense counsel was ineffective for failing to



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-70002    Document: 00514503590     Page: 2   Date Filed: 06/07/2018



                                 No. 17-70002
question the allegedly biased jurors; (2) whether defense counsel was
ineffective for not investigating Thomas’s competency to stand trial; (3)
whether defense counsel was ineffective in rebutting the State’s voluntary-
intoxication theory; (4) whether defense counsel was ineffective in presenting
a mitigation defense in the penalty phase; and (5) whether execution of the
severely mentally ill violates the Eighth Amendment.
      Without expressing any view on the merits, we conclude that reasonable
jurists could disagree about the resolution of the first four issues. Therefore,
we grant a COA on those issues. We deny a COA on the issue of whether
execution of the severely mentally ill violates the Eighth Amendment. This
issue is foreclosed under our precedent.
      The Clerk’s Office will set a briefing schedule.
      Motion for COA GRANTED IN PART AND DENIED IN PART.




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