United States v. Rose

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10882

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CASEY ROSE,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CV-685
USDC No. 3:14-CR-367-26

Before JONES, STEWART, and COSTA, Circuit Judges.
PER CURIAM:
*

Following a jury trial, Casey Rose, federal prisoner # 48743-177, was
convicted of drug-trafficking, conspiracy to commit drug-trafficking, and
possession of a firearm by a felon and was sentenced to life imprisonment. The
district court denied his 28 U.S.C. § 2255 motion in part on procedural grounds
and in part on the merits without holding an evidentiary hearing. Rose now
seeks a certificate of appealability (COA).

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
United States Court of Appeals
Fifth Circuit
FILED
August 11, 2020

Lyle W. Cayce
Clerk
Case: 19-10882 Document: 00515523381 Page: 1 Date Filed: 08/11/2020

No. 19-10882
2
If his COA brief is liberally construed, Rose renews his claims that his
Sixth Amendment right of confrontation was violated when his cross-
examination of Government witness Brandon Crow was terminated, that
appellate counsel was ineffective in failing to raise the claim, that his trial
attorneys were ineffective in failing to investigate his mental health and
request a competency hearing, and that the trial court erred in failing to
conduct a competency hearing sua sponte. He additionally argues that the
district court should have held an evidentiary hearing on his incompetency
claims. However, Rose briefs no argument renewing his claims that his due
process rights were violated when he was prevented from pointing out
discrepancies in his videotaped confession and when the Government failed to
correct perjured testimony or that trial counsel was ineffective in failing to
investigate possible defenses or in acting as standby counsel. Those claims are
therefore abandoned. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir.
1999); see also Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
This court will grant a COA, which is required to appeal, only when the
movant “has made 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).
To make that showing, Rose must establish that reasonable jurists would find
the decision to deny relief debatable or wrong, see Slack v. McDaniel, 529 U.S.
473, 484 (2000), or that the issue he presents deserves encouragement to
proceed further, see Miller-El, 537 U.S. at 327.
Rose has not made the requisite showing. See Miller-El, 537 U.S. at 327;
Slack, 529 U.S. at 484. His motion for a COA is therefore denied. We construe
the motion for a COA with respect to the district court’s failure 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.
COA DENIED; AFFIRMED.
Case: 19-10882 Document: 00515523381 Page: 2 Date Filed: 08/11/2020