* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-70043

GARY JOHNSON

Petitioner - Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

(05-CV-3581)

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Gary Johnson was convicted of capital murder and sentenced to death for

the 1986 murders of James Hazelton and Peter Sparagana during the same

criminal transaction. He requests a certificate of appealability (“COA”)

authorizing him to appeal the district court’s denial of federal habeas relief.

Johnson asserts that he is entitled to a COA for three claims:

United States Court of Appeals

Fifth Circuit

F I L E D

September 9, 2008

Charles R. Fulbruge III

Clerk
No. 07-70043

2

(1) The State’s suppression of evidence that two of the State’s witnesses

at trial had been hypnotized violated Johnson’s due process rights under Brady

v. Maryland, 373 U.S. 83 (1963);

(2) The district court erred by refusing to consider the affidavits of

attorneys on the issue of whether Johnson’s trial counsel rendered

constitutionally ineffective assistance; and 

(3) Johnson’s trial counsel rendered ineffective assistance by calling

Johnson’s brother, Terry, as a witness at the guilt phase of trial.

To obtain a COA, Johnson must make “a substantial showing ofthe denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, he

must demonstrate 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 encouragementto proceed further.” Miller-El

v. Cockrell, 537 U.S. 322, 327 (2003). “[A] claim can be debatable even though

every jurist of reason might agree, after the COA has been granted and the case

has received full consideration, that petitioner will not prevail.” Id. at 338. The

Supreme Court has instructed us that, in making our decision whether to grant

a COA, we must limit our examination to a “threshold inquiry,” which consists

of “an overview of the claims in the habeas petition and a general assessment of

their merits.” Id. at 327, 336. We cannot deny a COA because we believe the

petitioner ultimately will not prevail on the merits of his claims. Id. at 337. On

the other hand, however, “issuance of a COA must not be pro forma or a matter

of course.” Id. “While the nature of a capital case is not of itself sufficient to

warrant the issuance of a COA, in a death penalty case any doubts as to whether

a COA should issue must be resolved in the petitioner’s favor.” Ramirez v.

Dretke, 398F.3d 691, 694 (5th Cir. 2005) (internal quotation marks and citations

omitted).
No. 07-70043

3

Based on our limited, threshold inquiry and general assessment of the

merits of Johnson’s claims, we conclude that his Brady and ineffective assistance

of counsel claims present issues that are adequate to deserve encouragement to

proceed further. We therefore GRANT a COA authorizing Johnson to appeal the

district court’s denial of habeas relief for these two claims.

A COA is not required for Johnson’s claim that the district court erred by

refusing to consider the attorney affidavits he submitted to the district court in

support of his ineffective assistance claim. This claim by Johnson involves an

evidentiary ruling of the district court and not a claim of the denial of a

constitutional right. See Lewis v. Quarterman, 272 F. App’x 347, 351 (5th Cir.

Apr. 1, 2008) (unpublished). Accordingly, the issue of whether the district court

abused its discretion by refusing to consider the attorney affidavits will be

addressed in connection with the ineffective assistance claim for which we have

granted a COA. See id.

We think that these issues have been well briefed. If, however, Johnson

wishes to file a supplemental brief with respect to the merits of the claims, he

may do so within thirty days of the date of this order. The supplemental brief

should address only matters, if any, that have not already been covered in the

brief in support of the COA application. If Johnson files a supplemental brief,

the State may file a response fifteen days thereafter, to be similarly limited to

matters that have not already been covered in its brief in opposition to Johnson’s

COA application.

For the foregoing reasons, Johnson’s request for a COA is GRANTED in

part and DENIED, as unnecessary, in part.