IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-70009

ANIBAL CANALES, JR., 

 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 Eastern District of Texas

USDC No. 2:03-CV-69

Before HIGGINBOTHAM, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Anibal Canales 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. In 2014, this court remanded the case to the district court for 

consideration of Canales’s Wiggins claim for ineffective assistance of counsel 

during the sentencing phase of his trial for failing to develop and present 

 

* 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

October 22, 2018

Lyle W. Cayce

Clerk

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mitigating evidence. Finding that Canales had established cause to excuse his 

procedural default, the panel directed the district court to consider whether 

Canales could prove prejudice as a result of his trial counsel’s deficient 

performance at sentencing, and if so, to consider the merits of his habeas 

petition.1 On remand, the district court determined that Canales had not 

shown prejudice under Strickland2 on the merits of his ineffective assistance 

claim or prejudice to excuse the procedural default. The court went on to deny 

a COA, determining that reasonable jurists could not debate the denial of 

Canales’s § 2254 petition.

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

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

secure a COA.3 A COA may issue “only if the applicant has made a substantial 

showing of the denial of a constitutional right.”4 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.’”5 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.’”6

In his application, Canales contends that the district court dismissed the 

new mitigation evidence as “double-edged” and failed to meaningfully reweigh 

that evidence in the context of the existing mitigation and aggravation 

 

1 Canales v. Stephens, 765 F.3d 551, 571 (5th Cir. 2014).

2 Strickland v. Washington, 466 U.S. 668 (1984).

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

4 28 U.S.C. § 2253(c)(2).

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

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

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evidence. Canales has made a sufficient showing that jurists of reason could 

debate the district court’s conclusion that Canales failed to show prejudice to 

overcome a default of his Wiggins claim and his entitlement to relief. 

Accordingly, a COA is GRANTED with respect to that issue. We will allow for 

additional briefing now that a COA has been granted; however, the parties 

should avoid repetition and, if they wish, may rest on their briefs.7 Canales 

should file any additional briefing on this issue within thirty days of this 

order, and the State may respond within thirty days thereof. Extensions 

will be granted only by order of this panel for exceptional circumstances 

shown.

 

7 See, e.g., Butler v. Stephens, 600 F. App’x 246, 248 n.4 (5th Cir. 2015) (per curiam). 

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