Magee v. Lumpkin

United States Court of Appeals
for the Fifth Circuit

No. 19-20790

Korey Lewillie Magee,

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. 4:18-CV-3990

Before Elrod, Haynes, and Higginson, Circuit Judges.
Per Curiam:*
Korey Lewillie Magee, now Texas prisoner # 2069564, moves for a
certificate of appealability (COA) to appeal the district court’s denial of his
28 U.S.C. § 2254 application challenging his Texas conviction of capital
murder. Magee asserts that the district court erred by: (1) denying as

*
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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 29, 2020

Lyle W. Cayce
Clerk
Case: 19-20790 Document: 00515688572 Page: 1 Date Filed: 12/29/2020

No. 19-20790
2
procedurally defaulted his claims that (a) there was no or insufficient
evidence to support the retaliation element of his offense and (b) his trial
counsel rendered ineffective assistance by failing to show that the victim was
not a prospective witness; (2) denying on the merits his claim that his
appellate counsel rendered ineffective assistance by failing to challenge the
lack of evidence supporting his conviction; and (3) denying his motion for an
evidentiary hearing. To the extent that Magee raises additional claims for the
first time in this COA application, we lack jurisdiction to review such claims
because they were not encompassed by the district court’s denial of a COA.
See Black v. Davis, 902 F.3d 541, 545 (5th Cir. 2018).
A prisoner seeking a COA must make a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district
court has rejected a constitutional claim on the merits, “[t]he [prisoner] must
demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claim[] debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). When the district court has denied
relief on procedural grounds, “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.” Id.
As Magee fails to make the required showing for a COA on his
constitutional claims, we do not grant relief on the evidentiary hearing issue.
Compare Norman v. Stephens, 817 F.3d 226, 235 (5th Cir. 2016) (concluding
that the “denial of an evidentiary hearing was correct”) with United States v.
Davis, 971 F.3d 524, 534-35 (5th Cir. 2020) (holding that, if a COA does not
issue on the merits claims, the court cannot rule on the evidentiary question).
DENIED.
Case: 19-20790 Document: 00515688572 Page: 2 Date Filed: 12/29/2020