Ricky Stroble v. Lorie Davis, Director ( 2018 )

Case: 16-20442 Document: 00514509246 Page: 1 Date Filed: 06/12/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-20442 FILED
Summary Calendar June 12, 2018
Lyle W. Cayce
Clerk
RICKY LEE STROBLE,
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 Southern District of Texas
USDC No. 4:15-CV-3290
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Ricky Lee Stroble, Texas prisoner # 1594772, appeals the district court’s
decision to dismiss as time barred his 28 U.S.C. § 2254 application in which he
sought to challenge his convictions and sentences for aggravated sexual
assault of a child younger than 14 years old and indecency with a child. This
court granted Stroble a certificate of appealability (COA) on the issue whether
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-20442 Document: 00514509246 Page: 2 Date Filed: 06/12/2018
No. 16-20442
the amended state postconviction applications that Stroble submitted in April
2012 were properly filed thus tolling the one-year statute of limitations under
28 U.S.C. § 2244(d)(2).
Although we liberally construe briefs filed by pro se litigants, even they
must brief arguments in order to preserve them. Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993); see also FED. R. APP. P. 28(a) (enumerating what
an appellant’s brief must contain). In his opening brief, Stroble presses the
merits of the substantive claims he raised in his § 2254 application. Because
he has failed to argue that his April 2012 submissions were properly filed in
the state court, he has abandoned the sole issue on which this court granted a
COA. See Goodrum v. Quarterman, 547 F.3d 249, 259 n.49 (5th Cir. 2008)
(explaining that arguments not raised in a § 2254 applicant’s opening brief in
this court are waived).
Stroble is incorrect in contending in his reply brief that, in granting a
COA, this court agreed with his position that his April 2012 state court writs
were properly filed under § 2244(d)(2). The COA inquiry does not permit this
court to engage in a full consideration of the factual and legal bases for the
claim; thus, an applicant can obtain a COA without establishing that an appeal
will succeed. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Indeed, in
granting a COA, this court determined only that reasonable jurists would
debate whether Stroble’s position was correct. The effect of the COA was
simply to afford Stroble the ability to have this issue fully considered on appeal.
Accordingly, the district court’s judgment is AFFIRMED. Stroble’s motions for
leave to file an appendix, reconsideration of the denial of his motion to file an
amended appellate brief, in camera review of evidence, and suspension of the
rules are DENIED.
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