Smith v. Lumpkin

United States Court of Appeals
for the Fifth Circuit

No. 19-20716

John Richard Smith,

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-3578

Before Willett, Ho, and Duncan, Circuit Judges.
Per Curiam:*
A jury convicted John Richard Smith, Texas prisoner # 2037971, of
murder, and he was sentenced to 58 years in prison. He seeks a certificate of
appealability (COA) to challenge the district court’s denial of his 28 U.S.C.
§ 2254 petition in which he raised claims of prosecutorial misconduct and

*
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opinion should not be published and is not precedent except under the limited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 28, 2020

Lyle W. Cayce
Clerk
Case: 19-20716 Document: 00515686436 Page: 1 Date Filed: 12/28/2020

No. 19-20716
2
ineffective assistance of trial counsel. Smith also alleges that the district court
erred by denying habeas relief without conducting an evidentiary hearing.
To obtain a COA, Smith must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the
claims are rejected on the merits, the prisoner must “demonstrate that
reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong” or that the issues presented
“deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.
473, 484 (2000) (internal quotation marks and citation omitted).
Smith has failed to meet this standard. As Smith fails to make the
required showing for a COA on his constitutional claims, we do not reach
whether the district court erred by denying an evidentiary hearing. See United
States v. Davis, 971 F.3d 524, 534-35 (5th Cir. 2020).
Accordingly, Smith’s COA motion is DENIED.
Case: 19-20716 Document: 00515686436 Page: 2 Date Filed: 12/28/2020