Shannon Dale Dukes v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

For two decades, the Fifth Circuit routinely has denied certificates of appealability (COA) to habeas petitioners with claims that are debatable among reasonable jurists. In several cases, this Court has rejected the Fifth Circuit’s COA analysis and granted relief. See, e.g., Tennard v. Dretke, 542 U.S. 274 (2004). Yet, the Fifth Circuit remains “too demanding in assessing whether reasonable jurists could debate” the denial of relief. Jordan v. Fisher, 135 S.Ct. 2647, 2651 (2015) (Sotomayor, J., dissenting from denial of certiorari, joined by Ginsburg & Kagan, JJ.). Petitioner’s case exemplifies the Fifth Circuit’s systemic failure to apply the COA standard properly. Two judges on Texas’ highest court dissented from the denial of habeas relief. “When a state appellate court is divided on the merits of the constitutional question, issuance of a [COA] should ordinarily be routine.” Jones v. Basinger, 635 F.3d 1030, 1040 (7th Cir. 2011). Yet, a Fifth Circuit judge summarily denied a COA without analysis. Given the debatable constitutional claim and the Fifth Circuit’s practice of demanding too much in its COA determinations, the questions presented are: I. Whether petitioner’s trial counsel was ineffective at the guilt-innocence stage, in violation of the Sixth Amendment, in failing to request jury instructions on lesserincluded offenses that were strongly supported by the trial evidence and would