     Case: 18-50009      Document: 00514666682         Page: 1    Date Filed: 10/03/2018




                          REVISED October 3, 2018

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

                                      No. 18-50009                            FILED
                                                                        October 2, 2018
                                                                         Lyle W. Cayce
DONNA MARIE PRYOR,                                                            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 Western District of Texas
                             USDC No. 5:17-CV-492


Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Donna Marie Pryor, Texas prisoner # 1859201, received a 99-year prison
sentence as a habitual offender after her conviction for felony driving while
intoxicated. She moves this court for a certificate of appealability (COA) so
that she may appeal the district court’s denial of her 28 U.S.C. § 2254
application. In that application, she raised a claim that her 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 18-50009

rendered ineffective assistance for not objecting that her sentence violated the
Eighth Amendment. Pryor has not established that reasonable jurists would
find the decision to deny relief on this claim debatable or wrong. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000). To the extent that Pryor contends that
the state appellate court violated her right to due process, she explicitly
withdrew this claim in the district court and thus has waived it. See Wood v.
Milyard, 566 U.S. 463, 474 (2012). She also seeks to raise new claims that her
trial counsel was ineffective for (1) not filing a motion to suppress evidence
collected during a traffic stop and not requesting a pretrial hearing,
(2) neglecting to impeach a police officer’s testimony regarding the cause for
the traffic stop, and (3) improperly stating that Pryor was guilty. However,
this court will not grant a COA on claims raised for the first time here. See
Johnson v. Quarterman, 483 F.3d 278, 288 (5th Cir. 2007).
      With the benefit of liberal construction, Pryor’s submission also asks this
court to grant a COA as to the district court’s rejection of her attempt to amend
her § 2254 application to add claims raised in her reply brief. Reasonable
jurists would find debatable the district court’s implicit procedural ruling not
to permit Pryor to amend her § 2254 application to add these claims. See Slack,
529 U.S. at 484. Moreover, Pryor states a valid constitutional claim that the
prosecutor violated her due process rights by urging the jury to impose a harsh
prison sentence based on Texas’s parole and good-time credit procedures. See
Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).        Reasonable jurists,
however, would not debate whether she stated valid claims that the
prosecutor’s remarks violated state law, trial counsel was ineffective for not
requesting a limiting instruction, trial counsel was ineffective for calling
Pryor’s father to testify, and the prosecutor engaged in misconduct by
aggressively questioning Pryor’s father. See id.



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                                 No. 18-50009

      Accordingly, we grant a COA as to the district court’s procedural decision
that prevented the court from considering Pryor’s due process claim. We also
conclude that further briefing is unnecessary. See Whitehead v. Johnson, 157
F.3d 384, 388 (5th Cir. 1998). The district court abused its discretion by not
liberally construing Pryor’s pleading adding new claims as a motion to amend
and not permitting her to bring those claims. See United States v. Riascos, 76
F.3d 93, 94 (5th Cir. 1996). She filed the motion within the time frame for
amending her application as a matter of course, see FED. R. CIV. P. 15(a)(1),
and, even if she would have required the court’s leave to amend, nothing in the
record overcomes the presumption in favor of granting leave, see FED. R. CIV.
P. 15(a)(2); Mayeaux v. Louisiana Health Serv. & Indem. Co., 376 F.3d 420,
425 (5th Cir. 2004).
      IT IS ORDERED that Pryor’s motion for a COA is GRANTED in part
and DENIED in part. Pryor’s motions for appointment of counsel and for DNA
testing are DENIED. The district court’s judgment denying Pryor’s § 2254
petition is VACATED in part, and this matter is REMANDED to the district
court for further proceedings with respect to Pryor’s claim that the prosecutor’s
argument regarding the appropriate sentence violated her right to due process.




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