### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40552 Summary Calendar

TIMOTHY LEE MULLINS, Petitioner-Appellant

v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF C RIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee

Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:11-CV-318

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges. PER CURIAM: * Timothy Lee M ullins, Texas prisoner # 1 530696, appeals the dismissal of his 28 U.S.C. § 2254 peti t i o n , in which he challenged his c o nviction and life sentence for murder. Mullins ch a l l e n g e s the district court’s denial of r elief on his c laims that (1) trial c ounsel rendere d i n effective assistance i n failing to investigate his m ental health history and in abandoning the insanity defense at trial, (2) trial counsel rendered ineffective assistance in failing to p resent any U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 18, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40552 Document: 00512413902 Page: 1 Date Filed: 10/18/2013No. 12-40552

mitigating evidence at the punishment phase, (3) he was denied due process when the trial court did not a ppoint a psychiatrist for the defense, and (4) his appellate counsel rendered i neffective assistance in failing to raise on appeal the issue that the trial court abused its di s cretion in n ot appointing a p sychiatrist for the defense. To the e xtent that Mullins also raises the issues that his counsel rendered i neffective assistance in failing to challenge his confession and in failing to object to prosecutorial misconduct, the issues are beyond the scope of the certificate of appealability, and this court lacks jurisdiction to consider them. See S immons v . Epps , 654 F.3d 5 26, 5 35 (5th Cir. 2011), cert. denied , 1 32 S. Ct. 2374 (2012). In reviewing the d enial of § 2254 relief, this court reviews issues of law d e
novo and findings o f fact for clear error, applying the same deference to the state courts’ decision as the district court u n d e r the Antiterrorism a nd Effective Death Penalty Act. Ortiz v. Quarterman , 504 F.3d 492, 496 (5th C ir. 2007). Because the T exas Court of Criminal Appeals’ rejection of Mullins’s claims o f ineffective assistance of trial a nd appellate c ounsel was not contrary t o and did not involve

an unreasonable a pplication of Strickland v . W as h i ngton , 4 66 U.S. 668, 687 (1984), and did not involve “an unreasonable determination of the facts in light of the e v i d e n ce presented in the State court proceeding,” the district c ourt did not err i n d e n ying Mullins habeas relief on these claims. § 2254(d); see also Harrington v. Richter , 131 S. Ct. 770, 787-89 (2011). The district court also did not err in denying relief on Mullins’s c laim that the state trial court violated due
process i n not appointing a psychiatrist for the defense p u rsuant t o Ake v. Oklahoma , 470 U.S. 68, 76 (1985). See § 2254(d); W o odward v . Epps , 580 F.3d 318, 332 (5th Cir. 2009). AFFIRMED.

2 Case: 12-40552 Document: 00512413902 Page: 2 Date Filed: 10/18/2013