John Franklin Bell, Jr. v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Petitioner was convicted of continuous sexual abuse of a child. R.M., age 15, testified that she had engaged in sexual activity only with him. The State presented testimony that no DNA of evidentiary value was found on vaginal swabs taken from R.M. on the day after the last alleged act of sexual abuse. In fact, an unidentified male’s DNA was found on her vaginal swabs, but the state crime lab analyst deliberately omitted this from the report. Petitioner filed a habeas corpus application alleging that the State’s use of a misleading lab report and false testimony denied him due process and that his trial counsel was ineffective in failing to call a DNA expert. The trial court found— without any evidentiary support whatsoever—that the DNA result was inconclusive because the swabs could have been contaminated. The Texas Court of Criminal Appeals summarily denied relief. Based on this factual finding of inconclusiveness, the federal district court denied relief and a certificate of appealability (COA). One circuit judge summarily denied a COA even though the claims are clearly debatable among reasonable jurists. Petitioner’s case exemplifies the Fifth Circuit’s systemic failure to apply the correct COA standard. The question presented is: Are petitioner’s due process and ineffective assistance of counsel claims debatable among reasonable jurists, thus requiring a COA and plenary consideration by a three-judge panel of the Court of Appeals?