Leatherman v. Lumpkin

United States Court of Appeals
for the Fifth Circuit

No. 19-11052

Pat Dee Leatherman,

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 Northern District of Texas
USDC No. 4:19-CV-86

Before HIGGINBOTHAM, SMITH, and OLDHAM, Circuit Judges.
Per Curiam:*
Pat Dee Leatherman, Texas prisoner # 01129162, moves for a
certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2254
application challenging his guilty-plea conviction of murder. He contends
that the district court erred by dismissing as time barred, and without

*
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not be published and is not precedent except under the limited circumstances set forth in
5
TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
August 14, 2020

Lyle W. Cayce
Clerk
Case: 19-11052 Document: 00515527192 Page: 1 Date Filed: 08/14/2020

No. 19-11052
2
conducting discovery or holding an evidentiary hearing, his claims that (1) his
trial counsel rendered ineffective assistance by failing to investigate and
subpoena favorable witnesses, (2) the State violated Brady v. Maryland, 373
U.S. 83 (1963), by withholding a recording of an exonerative phone call, (3)
he is actually innocent, and (4) the State violated his due process rights by
using as evidence against him an audio recording of a 911 call in which he
confessed, while intoxicated, to the murder.
A COA may be issued only if the applicant “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see
Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a district court has
denied a request for habeas relief on procedural grounds, the prisoner must
show “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, 529 U.S. at 484. Leatherman fails to make the
necessary showing. When an applicant’s “constitutional claims fail” to
make the necessary showing for a COA, “we do not address the merits of
[the] request for an evidentiary hearing.” Norman v. Stephens, 817 F.3d 226,
234 (5th Cir. 2016).
Accordingly, Leatherman’s motions for a COA, appointment of
counsel, to compel the production of both test results and withheld evidence,
and for release pending appeal are DENIED.
Case: 19-11052 Document: 00515527192 Page: 2 Date Filed: 08/14/2020