Artimus Fegans v. Lorie Davis, Director

Case: 18-20609 Document: 00515319221 Page: 1 Date Filed: 02/21/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-20609 February 21, 2020
Lyle W. Cayce
Clerk
ARTIMUS LORENZO FEGANS,
Petitioner−Appellant,
versus
LORIE DAVIS, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,
Respondent−Appellee.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:17-CV-3834
Before SMITH, COSTA, and HO, Circuit Judges.
PER CURIAM: *
Artimus Fegans, Texas prisoner #1550650, has moved for a certificate of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-20609 Document: 00515319221 Page: 2 Date Filed: 02/21/2020
No. 18-20609
appealability (“COA”) to appeal the disposition of his 28 U.S.C. § 2254 appli-
cation in which he attacked his conviction of aggravated robbery. The district
court dismissed the § 2254 application as time-barred.
Fegans asserts that the application was timely. He contends that the
district court ignored state law and erroneously identified the date on which
his judgment was final for purposes of 28 U.S.C. § 2244(d)(1)(A). Fegans
contends that Texas state law provides that direct review is over when the
state appeals court issues the mandate and, if that date was used to determine
when the judgment was final, his § 2254 application was timely. He further
contends that, under § 2244(d)(2), he was entitled to have the limitations per-
iod tolled until his post-habeas motion for an extension of time to request re-
consideration was denied.
A COA may issue “if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Fegans may meet that
standard by establishing “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). Where, as here, the denial of
relief is based 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Fegans has not made the necessary showing. Accordingly, the motion
for a COA is DENIED.
Fegans asserts that the district court erred by failing to conduct an evi-
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Case: 18-20609 Document: 00515319221 Page: 3 Date Filed: 02/21/2020
No. 18-20609
dentiary hearing. We construe his motion for a COA as to the denial of an
evidentiary hearing as a direct appeal of that issue. See Norman v. Stephens,
817 F.3d 226, 234 (5th Cir. 2016). Fegans has not shown that the district court
abused its discretion in denying relief without an evidentiary hearing because
the record was sufficiently developed to allow the district court to find that his
§ 2254 application was time-barred. See § 2254(e)(2); Richards v. Quarterman,
566 F.3d 553, 563 (5th Cir. 2009). The order denying an evidentiary hearing
is AFFIRMED.
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