Wearren Murrell v. Bobby Lumpkin, Director

United States Court of Appeals
for the Fifth Circuit

No. 18-41157

Wearren Floyd Murrell,

Petitioner—Appellant
,

versus

Bobby Lumpkin, Director, Texas Department of
Criminal Justice, Correctional Institutions Division,

Respondent—Appellee
.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:17-CV-351

Before Higginbotham, Smith, and Oldham, Circuit Judges.
Per Curiam:*
Wearren Floyd Murrell, Texas prisoner # 1520340, was convicted of
one count of murder and two counts of aggravated robbery and sentenced to
30 years of imprisonment on each count. Murrell seeks a certificate of

*
Pursuant to 5TH CIRCUIT RULE 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opinion should not be published and is not precedent except under the limited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 5
TH CIRCUIT Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
September 3, 2020

Lyle W. Cayce
Clerk
Case: 18-41157 Document: 00515551863 Page: 1 Date Filed: 09/03/2020

No. 18-41157
2
appealability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 habeas
application by the district court as time barred and the denial of his Federal
Rule of Civil Procedure 59(e) motion to alter judgment. Murrell raises claims
of ineffective assistance of counsel and an involuntary and void plea
agreement. He urges that the violation of his rights as a foreign national
under Article 36 of the Vienna Convention on Consular relations excuses any
procedural default by him in regard to his § 2254 application. Murrell also
argues that the district court should have held an evidentiary hearing on his
claims.
To obtain a COA, Murrell 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). When, as here, the district court’s denial
of relief is based upon procedural grounds without analysis of the underlying
constitutional claims, “a COA should issue when the prisoner shows, at least,
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 v. McDaniel, 529 U.S. 473, 484 (2000). Murrell
has not made the requisite showing. See id.
Murrell’s motion for a COA is DENIED. A COA is not required to
appeal the denial of an evidentiary hearing in a federal habeas proceeding.
See Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016). Murrell’s request
for a COA on the evidentiary hearing issue is DENIED as unnecessary and
the judgment is AFFIRMED as to that claim.
Case: 18-41157 Document: 00515551863 Page: 2 Date Filed: 09/03/2020