IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50009

DONNA MARIE PRYOR,

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 Northern District of Texas

USDC No. 5:17-CV-492

Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges. 

PER CURIAM:*

Donna Marie Pryor, Texas prisoner # 1859201, received a 99-year prison 

sentence as a habitual offender after her conviction for felony driving while 

intoxicated. She moves this court for a certificate of appealability (COA) so 

that she may appeal the district court’s denial of her 28 U.S.C. § 2254 

application. In that application, she raised a claim that her trial counsel 

rendered ineffective assistance for not objecting that her sentence violated the 

 

* 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 2, 2018

Lyle W. Cayce

Clerk

 Case: 18-50009 Document: 00514665195 Page: 1 Date Filed: 10/02/2018
No. 18-50009

2

Eighth Amendment. Pryor has not established that reasonable jurists would 

find the decision to deny relief on this claim debatable or wrong. See Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). To the extent that Pryor contends that 

the state appellate court violated her right to due process, she explicitly 

withdrew this claim in the district court and thus has waived it. See Wood v. 

Milyard, 566 U.S. 463, 474 (2012). She also seeks to raise new claims that her 

trial counsel was ineffective for (1) not filing a motion to suppress evidence 

collected during a traffic stop and not requesting a pretrial hearing, 

(2) neglecting to impeach a police officer’s testimony regarding the cause for 

the traffic stop, and (3) improperly stating that Pryor was guilty. However, 

this court will not grant a COA on claims raised for the first time here. See 

Johnson v. Quarterman, 483 F.3d 278, 288 (5th Cir. 2007).

With the benefit of liberal construction, Pryor’s submission also asks this 

court to grant a COA as to the district court’s rejection of her attempt to amend 

her § 2254 application to add claims raised in her reply brief. Reasonable 

jurists would find debatable the district court’s implicit procedural ruling not 

to permit Pryor to amend her § 2254 application to add these claims. See Slack, 

529 U.S. at 484. Moreover, Pryor states a valid constitutional claim that the 

prosecutor violated her due process rights by urging the jury to impose a harsh 

prison sentence based on Texas’s parole and good-time credit procedures. See 

Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004). Reasonable jurists, 

however, would not debate whether she stated valid claims that the 

prosecutor’s remarks violated state law, trial counsel was ineffective for not 

requesting a limiting instruction, trial counsel was ineffective for calling 

Pryor’s father to testify, and the prosecutor engaged in misconduct by 

aggressively questioning Pryor’s father. See id.

 Case: 18-50009 Document: 00514665195 Page: 2 Date Filed: 10/02/2018
No. 18-50009

3

Accordingly, we grant a COA as to the district court’s procedural decision 

that prevented the court from considering Pryor’s due process claim. We also 

conclude that further briefing is unnecessary. See Whitehead v. Johnson, 157 

F.3d 384, 388 (5th Cir. 1998). The district court abused its discretion by not

liberally construing Pryor’s pleading adding new claims as a motion to amend

and not permitting her to bring those claims. See United States v. Riascos, 76 

F.3d 93, 94 (5th Cir. 1996). She filed the motion within the time frame for 

amending her application as a matter of course, see FED. R. CIV. P. 15(a)(1), 

and, even if she would have required the court’s leave to amend, nothing in the 

record overcomes the presumption in favor of granting leave, see FED. R. CIV.

P. 15(a)(2); Mayeaux v. Louisiana Health Serv. & Indem. Co., 376 F.3d 420, 

425 (5th Cir. 2004).

IT IS ORDERED that Pryor’s motion for a COA is GRANTED in part 

and DENIED in part. Pryor’s motions for appointment of counsel and for DNA 

testing are DENIED. The district court’s judgment denying Pryor’s § 2254 

petition is VACATED in part, and this matter is REMANDED to the district 

court for further proceedings with respect to Pryor’s claim that the prosecutor’s 

argument regarding the appropriate sentence violated her right to due process. 

 Case: 18-50009 Document: 00514665195 Page: 3 Date Filed: 10/02/2018