IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-70011

GEORGE E. MCFARLAND, 

 Petitioner - Appellant

v.

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

USDC No. 4:05-CV-3916

Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.

PER CURIAM:*

George McFarland moves for a certificate of appealability (“COA”) to 

appeal the denial of his 28 U.S.C. § 2254 petition challenging his sentence for 

capital murder. McFarland was convicted and sentenced to death for the 1991 

murder of Kenneth Kwan. 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 13, 2020

Lyle W. Cayce

Clerk

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No. 19-70011

2

A state prisoner whose petition for a writ of habeas corpus is denied by 

the district court does not have an absolute right to appeal and must first 

secure a COA.1 A COA may issue “only if the applicant has made a substantial 

showing of the denial of a constitutional right.”2 Consideration of an 

application for a COA “is not coextensive with a merits analysis” and the “only 

question is whether the applicant has shown 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.’”3 Our examination is limited at this stage 

“‘to a threshold inquiry into the underlying merit of [the] claims’ and [we] ask 

‘only if the District Court’s decision was debatable.’”4

In his application, McFarland raises four issues. First, McFarland claims 

that his trial counsel’s persistent sleeping during trial meant he was 

constructively deprived of counsel, in violation of United States v. Cronic,5 a 

deprivation not cured by the presence of secondary counsel appointed against 

McFarland’s wishes. Second, he claims his trial counsel was deficient under 

Strickland v. Washington6 for their failure to investigate and prepare for trial 

and for their failure to test the credibility of the State’s key witnesses. Third, 

he claims that he was denied representation during a police lineup after 

adversarial proceedings began, in violation of the Sixth Amendment. Fourth, 

he claims the prosecution suppressed evidence—critical grand jury 

testimony—in violation of Brady v. Maryland.7

1 Buck v. Davis, 137 S. Ct. 759, 773 (2017); 28 U.S.C. § 2253(c)(1).

2 28 U.S.C. § 2253(c)(2). 

3 Buck, 137 S. Ct. at 773 (quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)).

4 Id. at 774 (quoting Miller-El, 537 U.S. at 327).

5 466 U.S. 648, 661 (1984).

6 466 U.S. 668 (1984).

7 373 U.S. 83 (1963). 

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All issues warrant encouragement to proceed. McFarland has made a 

sufficient showing that jurists of reason could debate the district court’s 

conclusions. Accordingly, a COA is GRANTED. The clerk is DIRECTED to 

establish a briefing schedule, notify the respondent that a COA has been 

granted, and include the respondent in the briefing schedule.

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