Case: 20-50620 Document: 00515918261 Page: 1 Date Filed: 06/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-50620 June 29, 2021
Lyle W. Cayce
Clerk
Terrence Carmicheal,
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 Western District of Texas
USDC No. 5:19-CV-665
Before Higginbotham, Smith, and Oldham, Circuit Judges.
Per Curiam:*
Terrence Carmicheal, Texas prisoner # 2021606, was convicted on
one count of continuous sexual abuse of a child and two counts of indecency
with a child. He moves for a certificate of appealability (“COA”) under 28
*
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opinion should not be published and is not precedent except under the limited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: 20-50620 Document: 00515918261 Page: 2 Date Filed: 06/29/2021
No. 20-50620
U.S.C. § 2253(c) to appeal his convictions and sentence. The district court
denied relief, concluding that Carmicheal’s petition was time barred.
To obtain a COA, Carmicheal must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 483 (2000). He can satisfy this standard “by
demonstrating 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). When, as is the case here, the
district court’s dismissal is on procedural grounds, Carmicheal must show
“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, 529 U.S. at 484.
Because Carmicheal has not made the requisite showing, his COA
motion is DENIED. We cannot grant a COA on Carmicheal’s request for
an evidentiary hearing. See United States v. Davis, 971 F.3d 524, 534–35 (5th
Cir. 2020), petition for cert. filed (U.S. Mar. 18, 2021) (No. 20-7553).
2