Saunders v. Sparkman , 236 F. App'x 103 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 11, 2007
Charles R. Fulbruge III
No. 06-60264 Clerk
Summary Calendar
HERMAN SAUNDERS,
Petitioner-Appellant,
versus
EMMITT L. SPARKMAN,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
No. 2-02-CV-558
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Herman Saunders, a Mississippi state prisoner, seeks a cer-
tificate of appealability (“COA”) to appeal the denial of his
28 U.S.C. § 2254 petition in which he sought to challenge his con-
viction on two counts of capital murder, for which he received two
life sentences. Saunders argues that the district court abused its
*
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opinion should not be published and is not precedent except under the limited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.
No. 06-60264
-2-
discretion in refusing to apply equitable tolling of the one-year
statute of limitations to his newly exhausted claims. See
28 U.S.C. § 2244(d). As to the claims denied on the merits, Saun-
ders argues that (1) the evidence was insufficient to support his
conviction for the murder of Natasha Cole, and the jury instruc-
tions were erroneous; (2) the admission of extraneous offense evi-
dence was improper; and (3) the calling of a witness expected to
invoke the Fifth Amendment privilege against self-incrimination was
improper. Saunders has abandoned his remaining § 2254 claims ad-
dressed on the merits by the district court by failing to argue
those claims in his COA application. See Hughes v. Johnson, 191
F.3d 607, 613 (5th Cir. 1999).
A COA will be granted if the applicant makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make this showing, the applicant must demonstrate
“that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Slack v. Mc-
Daniel, 529 U.S. 473, 484 (2000). When the district court’s denial
of federal habeas relief is based on procedural grounds without
analysis of the underlying constitutional claims, “a COA should
issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in
its procedural ruling.” Id.
No. 06-60264
-3-
Saunders has failed to make the requisite showing as to his
argument that the district court abused its discretion in refusing
to applying equitable tolling to his newly exhausted claims. He
also has failed to make the required showing as to his claims that
the admission of extraneous offense evidence was improper and that
the calling of a witness expected to invoke the Fifth Amendment
privilege was improper. As to these claims, IT IS ORDERED that a
COA is DENIED.
In addressing the sufficiency of the evidence to support Saun-
ders’s capital murder conviction for the murder of Cole, the dis-
trict court held that “[t]he evidence in this case, particularly
the testimony of Carlos Stewart, one of Saunders’ hired killers,
satisfies this standard.” The court did not identify the essential
elements of the offense under state law, or set forth the nature of
Stewart’s testimony upon which it relied, or explain how, in light
of Stewart’s testimony, any rational trier of fact could have found
the essential elements of the offense beyond a reasonable doubt.
See Isham v. Collins, 905 F.2d 67, 69 (5th Cir. 1990) (observing
that the Jackson v. Virginia, 443 U.S. 307, 319 (1979), standard is
applied with reference to the substantive elements of the crime as
defined by state law). The appellate record, although containing
brief portions of the trial transcript, does not contain a complete
trial transcript, and the district court apparently addressed the
sufficiency of the evidence without the benefit of such a tran-
script. See Magouirk v. Phillips, 144 F.3d 348, 362-63 (5th Cir.
No. 06-60264
-4-
1998) (observing that the court was “at a loss to understand how a
federal habeas court can conduct a meaningful sufficiency review
without a transcript of the trial”). Morever, the court failed to
address Saunders’s challenge to the jury instructions, which he
raised in the context of his sufficiency challenge, and the com-
plete jury instructions are not part of the appellate record. See
Thacker v. Dretke, 396 F.3d 607, 615 (5th Cir. 2005) (stating that
generally, a single jury instruction may not be judged in arti-
ficial isolation but must be viewed in the context of the overall
charge).
Because the court denied Saunders’s challenge to the suffi-
ciency of the evidence and to the jury instructions without an ade-
quate state record, IT IS ORDERED that a COA is hereby GRANTED IN
PART. Cf. Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004) (re-
manding for further proceedings in light of, inter alia, unclear or
incomplete materials). IT IS FURTHER ORDERED that the judgment is
VACATED with respect to the denial of Saunders’s sufficiency-of-
the-evidence claim and challenge to the jury instructions, and this
case is REMANDED for further proceedings consistent with this opin-
ion. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998)
(stating that this court may grant COA, vacate judgment, and remand
without requiring further briefing in appropriate case). On
remand, the district court is encouraged to order the respondent to
add to the record any portions of the state court papers, including
transcripts, that are necessary for the district court to conduct
No. 06-60264
-5-
a meaningful review of the issues on which COA has been granted.
If the records are not available, the court should consider whether
an evidentiary hearing should be conducted for the purpose of re-
ceiving evidence relevant to those claims.