     Case: 17-11379      Document: 00515368691         Page: 1    Date Filed: 04/01/2020




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

                                                                               FILED
                                      No. 17-11379                          April 1, 2020
                                                                          Lyle W. Cayce
FINNIS DAVIS, II,                                                              Clerk


                                                 Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:16-CV-15


Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Finnis Davis, II, Texas prisoner # 1779538, was convicted by a jury of
attempted capital murder and was sentenced to 50 years in prison. The district
court denied his 28 U.S.C. § 2254 petition on the merits. Davis now requests
a certificate of appealability (COA) to appeal the denial of his petition as well
as the denial of his subsequent Federal Rule of Civil Procedure 59(e) motion to
amend the judgment denying his petition.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-11379

      Davis argues that the district court erred in (1) denying his Rule 59(e)
motion; (2) denying his § 2254 petition because (a) he received ineffective
assistance of counsel, (b) the prosecutor engaged in misconduct, (c) the trial
court violated his due process rights by failing to inquire into his competency
or to investigate his complaints about counsel, and (d) the evidence was
insufficient to support his conviction; and (3) denying his motions for an
evidentiary hearing and for discovery. Davis’s motion to supplement his COA
motion is GRANTED. His emergency motion for an evidentiary hearing and
discovery and motion for the court to review evidence are DENIED AS MOOT.
      To obtain a COA, a petitioner must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district court
has denied claims on the merits, a petitioner must show “that jurists of reason
could disagree with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003).
      Davis first challenges the district court’s denial of his Rule 59(e) motion.
In that motion, Davis essentially challenged the district court’s decision on the
merits, asserting that the legal reasoning behind the determination was
flawed. Thus, to the extent that his motion raised new claims for relief or
challenged the district court’s resolution of his claims on the merits, it was a
successive § 2254 petition requiring authorization from this court, which Davis
did not receive. See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005); Williams v.
Thaler, 602 F.3d 291, 302 (5th Cir. 2010). The district court lacked jurisdiction
over these portions of the motion. See § 2244(b)(3)(A); United States v. Key,
205 F.3d 773, 774 (5th Cir. 2000). To the extent that Davis purported to attack
a defect in the habeas proceedings by alleging that the district court erred in



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                                 No. 17-11379

denying his motion for discovery, he has not shown that reasonable jurists
would debate the issue, as demonstrated by our discussion of the denial of the
discovery request, infra. Davis accordingly fails to show that any claims over
which the district court had jurisdiction deserve encouragement to proceed
further. See Miller-El, 537 U.S. at 327.
      We next address Davis’s claims of ineffective assistance of counsel.
Davis contends on appeal that he received ineffective assistance of trial counsel
because counsel (1) informed the judge of his belief that Davis was about to
commit perjury; (2) failed to obtain Roney’s medical records and cross-examine
the treating paramedic; (3) failed to communicate the State’s original plea offer
to Davis; (4) failed to request a competency hearing; (5) failed to investigate
Davis’s history of mental illness to develop a possible insanity defense; and (6)
failed to fully investigate and develop evidence regarding one of the victim’s
statements to the police and during the trial and failed to obtain ballistics
evidence to undermine her testimony. After reviewing the record and an
affidavit submitted by counsel, the state habeas court considered and rejected
Davis’s ineffective assistance of counsel claims, making numerous factual
findings, including that counsel properly investigated the case, his decisions
were the result of reasonable trial strategy, and that no prejudice resulted from
any alleged deficiency.    Davis cannot demonstrate that reasonable jurists
would   debate   whether    these   findings   and   conclusions   involved   an
unreasonable determination of the facts or an unreasonable application of
clearly established federal law. See Harrington v. Richter, 562 U.S. 86, 103
(2011); Strickland v. Washington, 466 U.S. 668, 688 (1984); United States v.
Bernard, 762 F. 3d 467, 477 (5th Cir. 2014); Pondexter v. Quarterman, 537 F.3d
511, 524 (5th Cir. 2008); Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000).




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                                       No. 17-11379

       Davis next asserts that the prosecutor in his case engaged in misconduct
by failing to enter one of the victim’s medical records into evidence and relying
on false testimony from the other victim.                  The state habeas court, in
adjudicating this claim, determined that Davis had pointed merely to
inconsistent testimony and had not provided any evidence that the victim’s
testimony was false and provided no evidence that the prosecution withheld
pertinent medical records. Davis has not shown that reasonable jurists could
debate whether the state court’s ruling on these points was “so lacking in
justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Richter, 562
U.S. at 103. Moreover, Davis cannot show a Brady violation by virtue of
allegedly withheld medical records, because the same information was
obtained through testimony. See Brady v. Maryland, 373 U.S. 83, 87 (1963). 1
       Davis also asserts that the state trial court should have inquired more
deeply into his competency due to his “unusual” and “disruptive courtroom
behavior.” In addressing Davis’s competency claim, the state appellate court
noted that the trial court found Davis incompetent to stand trial in September
2011 and committed him to a mental health facility for an evaluation. Davis
v. State, No. 02-12-00163-CR, 2013 WL 5781489, at *2 (Tex. App. Oct. 24, 2013)
(unpublished). The trial court then relied on a report from the North Texas
State Hospital notifying the court that Davis had regained competency, and
that the trial court was not required to hold an evidentiary hearing and could
rely on the report to determine that Davis had regained competency. Davis,
2013 WL 5781489, at *2. Davis points to his outbursts at trial as reflecting

       1 Additionally, we conclude the district court did not abuse its discretion in denying,
in the exercise of its discretion, discovery of the victim’s medical records, because Davis had
not shown “good cause” as required by the Federal Rules Governing § 2254 Cases. See Hill
v. Johnson, 210 F.3d 481, 487 (5th Cir. 2000); Clark v. Johnson, 202 F.3d 760, 765-66 (5th
Cir. 2000).


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                                  No. 17-11379

incompetency and requiring a sua sponte competency hearing, but, as the state
appellate court noted, the trial court did not abuse its discretion in refusing to
hold a competency hearing, because “it is clear the trial judge believed
appellant understood everything that was occurring and was merely being
intentionally argumentative and disruptive.” Id. at *5. We cannot conclude
that the state court’s ruling was “so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Richter, 562 U.S. at 103.
      Davis next asserts that insufficient evidence supports his conviction.
The standard for testing the sufficiency of the evidence in federal habeas
review of a state court conviction is whether, “after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979). Davis cannot meet this standard, as he
challenges the jury’s credibility determinations and weighing of the evidence.
He thus cannot show that the finding of guilt “was so insupportable as to fall
below the threshold of bare rationality.” Herrera v. Collins, 506 U.S. 390, 656
(1993).
      Finally, Davis challenges the district court’s denial of his request for an
evidentiary hearing on his habeas petition. Under AEDPA, a district court has
the discretion to hold an evidentiary hearing in a § 2254 proceeding, subject to
statutory limits on considering evidence not presented to or developed in the
state courts. See Cullen v. Pinholster, 563 U.S. 170, 181-82, 185-86 (2011);
Blue v. Thaler, 665 F.3d 647, 655-56 (5th Cir. 2011); § 2254(d), (e)(2). Davis
does not articulate how the district court would have been able to consider any
new evidence, and therefore has not shown that the district court erred in
denying such a hearing. See Pinholster, 563 U.S. at 181, 185-86; § 2254(d).



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                               No. 17-11379

     For these reasons, Davis has thus not made the requisite showing for a
COA on any issue. Accordingly, his motion for a COA is DENIED. We construe
Davis’s motion for a COA with respect to the district court’s denial of an
evidentiary hearing as a direct appeal of that issue, see Norman v. Stephens,
817 F.3d 226, 234 (5th Cir. 2016), and AFFIRM.
     COA DENIED; AFFIRMED.




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