Wesbrook v. Quarterman , 318 F. App'x 265 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 17, 2009
No. 08-70024 Charles R. Fulbruge III
Clerk
COY WAYNE WESBROOK
Petitioner - Appellant
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent - Appellee
Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. 4:07-CV-1029
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Coy Wayne Wesbrook was convicted of capital murder and sentenced to
death for murdering Gloria Coons and Antonio Cruz in the same criminal
transaction. He requests a certificate of appealability (“COA”) authorizing him
to appeal the district court’s denial of federal habeas relief. Wesbrook asserts
that he is entitled to a COA for three claims:
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-70024
(1) that his trial counsel rendered ineffective assistance by failing to fully
investigate his neurological impairments;
(2) that he was denied his Sixth Amendment right to counsel by the State’s
use of an undercover informant to obtain incriminating statements while he was
incarcerated and represented by counsel; and
(3) that his due process rights were violated because the trial judge
engaged in ex parte communications with the prosecution and acted in a dual
role as both an investigator and an adjudicator.
To obtain a COA, Wesbrook must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a
showing, he must demonstrate that “jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). “[A] claim can be
debatable even though every jurist of reason might agree, after the COA has
been granted and the case has received full consideration, that petitioner will
not prevail.” Id. at 338. The Supreme Court has instructed us that, in making
our decision whether to grant a COA, we must limit our examination to a
“threshold inquiry,” which consists of “an overview of the claims in the habeas
petition and a general assessment of their merits.” Id. at 327, 336. We cannot
deny a COA because we believe the petitioner ultimately will not prevail on the
merits of his claims. Id. at 337. On the other hand, however, “issuance of a COA
must not be pro forma or a matter of course.” Id. “While the nature of a capital
case is not of itself sufficient to warrant the issuance of a COA, in a death
penalty case any doubts as to whether a COA should issue must be resolved in
the petitioner’s favor.” Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005)
(internal quotation marks and citations omitted).
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No. 08-70024
Based on our limited, threshold inquiry and general assessment of the
merits of Wesbrook’s claims, we conclude that he has presented issues that are
adequate to deserve encouragement to proceed further. We therefore GRANT
a COA authorizing Wesbrook to appeal the district court’s denial of habeas relief
for these claims.
We think that these issues have been thoroughly briefed. If, however,
Wesbrook wishes to file a supplemental brief with respect to the merits of the
claims, he may do so within thirty days of the date of this order. The
supplemental brief should address only matters, if any, that have not already
been covered in the brief in support of the COA application. If Wesbrook files a
supplemental brief, the State may file a response fifteen days thereafter, to be
similarly limited to matters that have not already been covered in its brief in
opposition to Wesbrook’s COA application.
For the foregoing reasons, Wesbrook’s request for a COA is GRANTED.
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