Phillips v. Lumpkin

United States Court of Appeals
for the Fifth Circuit

No. 19-50040

Christopher Allen Phillips,

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 Western District of Texas
USDC No. 6:18-CV-4

Before Southwick, Willett, and Ho, Circuit Judges.
Per Curiam:*
Christopher Allen Phillips, Texas prisoner # 1790816, moves for a
certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2254
petition challenging his conviction of aggravated robbery. He also moves for
amendment of his COA brief and for the appointment of counsel.

*
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should not be published and is not precedent except under the limited circumstances set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
August 14, 2020

Lyle W. Cayce
Clerk
Case: 19-50040 Document: 00515527924 Page: 1 Date Filed: 08/14/2020

No. 19-50040
2
The district court denied relief on the claims in Phillips’s original
§ 2254 petition on the merits and the claims in his supplemental § 2254
petition as time barred. Phillips contends that his trial counsel provided
ineffective assistance on multiple grounds; the prosecutor engaged in
misconduct by presenting false testimony at trial; and the district court erred
by declining to conduct an evidentiary hearing. He also contends that the
district court erred in determining that his claim that the trial court abused
its discretion in admitting the audio recording into evidence was time barred.
To obtain a COA, Phillips 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 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 v. McDaniel, 529 U.S. 473, 484 (2000). When constitutional claims
have been rejected on the merits, the prisoner must show “that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Id.
By not briefing his claims that the district court erred in denying relief
on his claims that the prosecution withheld evidence of a plea bargain and
that counsel’s cumulative errors deprived him of a fair trial, Phillips has
waived the issues. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999)
(“[i]ssues not raised in the brief filed in support of [a] COA application are
waived”).
On his briefed claims, Phillips has not made the necessary showing.
Accordingly, his motions for a COA and for the appointment of counsel are
DENIED. His motion for amendment of his COA brief is GRANTED.
Case: 19-50040 Document: 00515527924 Page: 2 Date Filed: 08/14/2020

No. 19-50040
3
We construe the motion for a COA with respect to the district court’s
refusal to hold an evidentiary hearing as a direct appeal of that issue, see
Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016), and AFFIRM.
Case: 19-50040 Document: 00515527924 Page: 3 Date Filed: 08/14/2020