     Case: 16-40103      Document: 00514284542         Page: 1    Date Filed: 12/22/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                    No. 16-40103                                 FILED
                                  Summary Calendar                       December 22, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
SCOTT LESLIE CARMELL,

                                                 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. 4:13-CV-681


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Scott Leslie Carmell, Texas prisoner # 777548, was convicted of 15
counts of sexual offenses against his stepdaughter that included eight counts
of indecency with a child, five counts of sexual assault, and two counts of
aggravated sexual assault. He was sentenced to 13 concurrent 20-year terms
of imprisonment on the indecency and sexual assault convictions, and he was



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 16-40103

sentenced to two terms of life imprisonment for the aggravated sexual assault
convictions.   Carmell’s convictions and sentences were affirmed on direct
appeal, Carmell v. State, 963 S.W.2d 833, 834-35 (Tex. App.—Fort Worth 1998)
(per curiam) (Carmell I), but the case was remanded by the Supreme Court on
certain counts. Carmell v. Texas, 529 U.S 513, 516-53 (2000) (Carmell II). On
appeal after remand, his convictions and sentences were again affirmed.
Carmell v. State, 26 S.W.3d 726, 728 (Tex. App.—Fort Worth 2000) (per
curiam) (Carmell III).
      On his initial 28 U.S.C. § 2254 application, Carmell was granted relief
in the form of an out-of-time appeal. Carmell v. Quarterman, 292 F. App’x 317,
330 (5th Cir. 2008) (per curiam) (Carmell IV). His conviction and sentence
were again affirmed by the state appellate court. Carmell v. State, 331 S.W.3d
450, 455-56 (Tex. App.—Fort Worth 2010) (Carmell V).
      Carmell then filed the instant § 2254 application. The district court
denied relief, but a certificate of appealability was granted on Carmell’s claims
of ineffective assistance of appellate counsel and his related claim that the
district court erred in denying his discovery request.
      We “review the district court’s findings of fact for clear error and review
its conclusions of law de novo, applying the same standard of review to the
state court’s decision as the district court.” Ortiz v. Quarterman, 504 F.3d 492,
496 (5th Cir. 2007). “A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as fairminded jurists could disagree on
the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.
86, 101 (2011) (internal quotation marks and citation omitted).
      Carmell argues that appellate counsel was ineffective. Specifically, he
contends that counsel failed to challenge the lack of jurisdiction in the trial
court, the excessiveness of his life sentences, the alleged perjury of the victim,



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                                  No. 16-40103

the withholding of impeachment evidence by the prosecution, and the
cumulative error that affected the trial. He also argues that appellate counsel
was deficient for failing to argue that trial counsel was ineffective. Carmell
asserts that counsel should have argued on appeal that trial counsel was
ineffective for failing to investigate and interview witnesses, failing to preserve
a vagueness challenge to Texas Penal Code section 22.021, failing to inform
the court that Carmell was eligible to be tried under a second degree statute,
failing to object to the introduction of a misdemeanor conviction during the
penalty phase, and failing to challenge the trial court’s jurisdiction.
      To establish ineffective assistance of counsel, a defendant must show
that counsel performed deficiently and that he was prejudiced by counsel’s
performance.    Strickland v. Washington, 466 U.S. 668, 687 (1984).            The
Strickland standard applies to allegations of ineffective assistance of appellate
counsel.   Amador v. Quarterman, 458 F.3d 397, 411 (5th Cir. 2006).              To
establish that appellate counsel’s performance was deficient, the applicant
must show that counsel was objectively unreasonable in failing to find arguable
issues to appeal. Smith v. Robbins, 528 U.S. 259, 285 (2000). If the petitioner
makes such a showing, he must establish actual prejudice by demonstrating a
“reasonable probability” that he would have prevailed on appeal but for
counsel’s deficient performance. Id. Review of the state court’s application of
the Strickland standard is “doubly” deferential when § 2254(d) applies, as it
does in this case. See Richter, 562 U.S. at 105.
      Carmell fails to show that the state court’s ruling denying relief on his
claims of ineffective assistance of appellate counsel “was so lacking in
justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Richter, 562
U.S. at 103. Accordingly, the state court’s decision that appellate counsel was



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                                   No. 16-40103

not ineffective was not contrary to or an unreasonable application of clearly
established federal law, and the district court did not err in denying Carmell
§ 2254 relief. See § 2254(d)(1).
      Regarding Carmell’s assertion that the district court erred in denying
his discovery request, his argument that the requested documents could
support his claims is speculative. See Murphy v. Johnson, 205 F.3d 809, 814
(5th Cir. 2000). Moreover, “federal review of a state prisoner’s habeas claim is
limited to the record that was before the state court that adjudicated the claim
on the merits.” Rabe v. Thaler, 649 F.3d 305, 308-09 (5th Cir. 2011) (internal
quotation marks and citation omitted). Thus, Carmell fails to show that the
district court abused its discretion in denying his discovery request. See Clark
v. Johnson, 202 F.3d 760, 765-66 (5th Cir. 2000).
      The judgment of the district court is AFFIRMED. Carmell’s motion for
summary judgment is DENIED.




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