IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-11379

FINNIS DAVIS, II,

Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 4:16-CV-15

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.

PER CURIAM:*

Finnis Davis, II, Texas prisoner # 1779538, was convicted by a jury of 

attempted capital murder and was sentenced to 50 years in prison. The district 

court denied his 28 U.S.C. § 2254 petition on the merits. Davis now requests 

a certificate of appealability (COA) to appeal the denial of his petition as well 

as the denial of his subsequent Federal Rule of Civil Procedure 59(e) motion to 

amend the judgment denying his petition. 

* 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

April 1, 2020

Lyle W. Cayce

Clerk

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Davis argues that the district court erred in (1) denying his Rule 59(e) 

motion; (2) denying his § 2254 petition because (a) he received ineffective 

assistance of counsel, (b) the prosecutor engaged in misconduct, (c) the trial 

court violated his due process rights by failing to inquire into his competency 

or to investigate his complaints about counsel, and (d) the evidence was 

insufficient to support his conviction; and (3) denying his motions for an 

evidentiary hearing and for discovery. Davis’s motion to supplement his COA 

motion is GRANTED. His emergency motion for an evidentiary hearing and 

discovery and motion for the court to review evidence are DENIED AS MOOT.

To obtain a COA, a petitioner must make “a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district court 

has denied claims on the merits, a petitioner must show “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). 

Davis first challenges the district court’s denial of his Rule 59(e) motion. 

In that motion, Davis essentially challenged the district court’s decision on the 

merits, asserting that the legal reasoning behind the determination was 

flawed. Thus, to the extent that his motion raised new claims for relief or 

challenged the district court’s resolution of his claims on the merits, it was a 

successive § 2254 petition requiring authorization from this court, which Davis 

did not receive. See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005); Williams v.

Thaler, 602 F.3d 291, 302 (5th Cir. 2010). The district court lacked jurisdiction 

over these portions of the motion. See § 2244(b)(3)(A); United States v. Key, 

205 F.3d 773, 774 (5th Cir. 2000). To the extent that Davis purported to attack 

a defect in the habeas proceedings by alleging that the district court erred in 

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denying his motion for discovery, he has not shown that reasonable jurists 

would debate the issue, as demonstrated by our discussion of the denial of the 

discovery request, infra. Davis accordingly fails to show that any claims over 

which the district court had jurisdiction deserve encouragement to proceed 

further. See Miller-El, 537 U.S. at 327. 

We next address Davis’s claims of ineffective assistance of counsel. 

Davis contends on appeal that he received ineffective assistance of trial counsel 

because counsel (1) informed the judge of his belief that Davis was about to 

commit perjury; (2) failed to obtain Roney’s medical records and cross-examine 

the treating paramedic; (3) failed to communicate the State’s original plea offer 

to Davis; (4) failed to request a competency hearing; (5) failed to investigate 

Davis’s history of mental illness to develop a possible insanity defense; and (6) 

failed to fully investigate and develop evidence regarding one of the victim’s 

statements to the police and during the trial and failed to obtain ballistics 

evidence to undermine her testimony. After reviewing the record and an 

affidavit submitted by counsel, the state habeas court considered and rejected 

Davis’s ineffective assistance of counsel claims, making numerous factual 

findings, including that counsel properly investigated the case, his decisions 

were the result of reasonable trial strategy, and that no prejudice resulted from 

any alleged deficiency. Davis cannot demonstrate that reasonable jurists 

would debate whether these findings and conclusions involved an 

unreasonable determination of the facts or an unreasonable application of 

clearly established federal law. See Harrington v. Richter, 562 U.S. 86, 103 

(2011); Strickland v. Washington, 466 U.S. 668, 688 (1984); United States v. 

Bernard, 762 F. 3d 467, 477 (5th Cir. 2014); Pondexter v. Quarterman, 537 F.3d 

511, 524 (5th Cir. 2008); Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). 

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Davis next asserts that the prosecutor in his case engaged in misconduct 

by failing to enter one of the victim’s medical records into evidence and relying 

on false testimony from the other victim. The state habeas court, in 

adjudicating this claim, determined that Davis had pointed merely to 

inconsistent testimony and had not provided any evidence that the victim’s 

testimony was false and provided no evidence that the prosecution withheld 

pertinent medical records. Davis has not shown that reasonable jurists could 

debate whether the state court’s ruling on these points was “so lacking in 

justification that there was an error well understood and comprehended in 

existing law beyond any possibility for fairminded disagreement.” Richter, 562 

U.S. at 103. Moreover, Davis cannot show a Brady violation by virtue of 

allegedly withheld medical records, because the same information was 

obtained through testimony. See Brady v. Maryland, 373 U.S. 83, 87 (1963).1 

Davis also asserts that the state trial court should have inquired more 

deeply into his competency due to his “unusual” and “disruptive courtroom 

behavior.” In addressing Davis’s competency claim, the state appellate court 

noted that the trial court found Davis incompetent to stand trial in September 

2011 and committed him to a mental health facility for an evaluation. Davis 

v. State, No. 02-12-00163-CR, 2013 WL 5781489, at *2 (Tex. App. Oct. 24, 2013) 

(unpublished). The trial court then relied on a report from the North Texas 

State Hospital notifying the court that Davis had regained competency, and 

that the trial court was not required to hold an evidentiary hearing and could 

rely on the report to determine that Davis had regained competency. Davis, 

2013 WL 5781489, at *2. Davis points to his outbursts at trial as reflecting 

1 Additionally, we conclude the district court did not abuse its discretion in denying, 

in the exercise of its discretion, discovery of the victim’s medical records, because Davis had 

not shown “good cause” as required by the Federal Rules Governing § 2254 Cases. See Hill 

v. Johnson, 210 F.3d 481, 487 (5th Cir. 2000); Clark v. Johnson, 202 F.3d 760, 765-66 (5th 

Cir. 2000). 

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incompetency and requiring a sua sponte competency hearing, but, as the state 

appellate court noted, the trial court did not abuse its discretion in refusing to 

hold a competency hearing, because “it is clear the trial judge believed 

appellant understood everything that was occurring and was merely being 

intentionally argumentative and disruptive.” Id. at *5. We cannot conclude 

that the state court’s ruling was “so lacking in justification that there was an 

error well understood and comprehended in existing law beyond any possibility 

for fairminded disagreement.” Richter, 562 U.S. at 103. 

Davis next asserts that insufficient evidence supports his conviction. 

The standard for testing the sufficiency of the evidence in federal habeas 

review of a state court conviction is whether, “after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” Jackson 

v. Virginia, 443 U.S. 307, 319 (1979). Davis cannot meet this standard, as he 

challenges the jury’s credibility determinations and weighing of the evidence. 

He thus cannot show that the finding of guilt “was so insupportable as to fall 

below the threshold of bare rationality.” Herrera v. Collins, 506 U.S. 390, 656 

(1993).

Finally, Davis challenges the district court’s denial of his request for an 

evidentiary hearing on his habeas petition. Under AEDPA, a district court has 

the discretion to hold an evidentiary hearing in a § 2254 proceeding, subject to 

statutory limits on considering evidence not presented to or developed in the 

state courts. See Cullen v. Pinholster, 563 U.S. 170, 181-82, 185-86 (2011); 

Blue v. Thaler, 665 F.3d 647, 655-56 (5th Cir. 2011); § 2254(d), (e)(2). Davis 

does not articulate how the district court would have been able to consider any 

new evidence, and therefore has not shown that the district court erred in 

denying such a hearing. See Pinholster, 563 U.S. at 181, 185-86; § 2254(d). 

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For these reasons, Davis has thus not made the requisite showing for a 

COA on any issue. Accordingly, his motion for a COA is DENIED. We construe 

Davis’s motion for a COA with respect to the district court’s denial of an 

evidentiary hearing as a direct appeal of that issue, see Norman v. Stephens, 

817 F.3d 226, 234 (5th Cir. 2016), and AFFIRM.

COA DENIED; AFFIRMED.

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