Terrell v. Lumpkin

Case: 19-40678 Document: 00515720370 Page: 1 Date Filed: 01/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 26, 2021
No. 19-40678 Lyle W. Cayce
Clerk
Sheron Gabriel Terrell,
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. 3:16-CV-179
Before Stewart, Graves, and Higginson, Circuit Judges.
Per Curiam:*
Sheron Gabriel Terrell, Texas prisoner # 1779108, has applied for a
certificate of appealability (COA) for an appeal from the denial of his
application for a writ of habeas corpus challenging his 2012 conviction of
possession of more than one gram and less than four grams of cocaine.
*
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opinion should not be published and is not precedent except under the limited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.
Case: 19-40678 Document: 00515720370 Page: 2 Date Filed: 01/26/2021
No. 19-40678
Terrell must make “a substantial showing of the denial of a constitutional
right” by demonstrating “that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” 28
U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
First, Terrell asserts that his rights under the Fourth Amendment
were violated. The district court held that these claims are barred under the
rule in Stone v. Powell, 428 U.S. 465, 494 (1976). Terrell has not shown that
reasonable jurists would find that the district court’s application of Stone was
debatable or wrong. See Slack, 529 U.S. at 484.
Next, Terrell contends that his trial counsel rendered ineffective
assistance by failing to litigate his Fourth Amendment claims adequately; by
failing to investigate and interview certain witnesses; by failing to impeach
the testimony of the arresting officer; and by failing to request a continuance.
Terrell complains that appellate counsel failed to raise any meritorious
issues. Terrell has not shown that reasonable jurists would find that the
district court’s deference to the state court’s rejection of these ineffective-
assistance claims was debatable or wrong. See id.
Finally, Terrell complains that the State suppressed the identity of an
officer who was at the crime scene and that it presented the false testimony
of the arresting officer, in violation of his rights to due process and
compulsory process. He has not shown that reasonable jurists would find
that the district court’s deference to the state court’s rejection of these
constitutional claims was debatable or wrong. See Slack, 529 U.S. at 484; see
also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
As Terrell fails to make the required showing for a COA on his
constitutional claims, we do not reach the question of whether the district
court erred by failing to convene an evidentiary hearing. See United States v.
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Case: 19-40678 Document: 00515720370 Page: 3 Date Filed: 01/26/2021
No. 19-40678
Davis, 971 F.3d 524, 534-35 (5th Cir. 2020). The request for a COA is
DENIED.
3