Leasure v. Johnson ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10358
Summary Calendar
ROBERT KENNETH LEASURE,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CV-2547
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July 27, 2000
Before WIENER, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
Robert Kenneth Leasure (“Leasure”), Texas prisoner # 747659,
moves for a certificate of appealability (“COA”) from the
district court’s dismissal of his 28 U.S.C. § 2254 petition as
time-barred. To obtain a COA for constitutional issues, Leasure
must make a substantial showing of the denial of a constitutional
right. See 28 U.S.C. § 2253(c)(2). To obtain a COA for
procedural issues, Leasure must show that “jurists of reason
would find it debatable whether [he] states a valid claim of the
*
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that this opinion should not be published and is not precedent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. 00-10358
-2-
denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 120 S. Ct. 1595, 1604
(2000).
Leasure contends that the district court erred in dismissing
his § 2254 petition as time-barred. He argues that he filed an
application for state postconviction relief on case number F94-
40748-HQ on March 9, 1998, that tolled the limitations period,
under 28 U.S.C. § 2244(d)(2), until the application was decided
on March 31, 1999. Leasure further argues that the district
court should have equitably tolled the limitations period, until
September 30, 1999, the date he received notice that the Texas
Court of Criminal Appeals had denied the application.
The district court did not address either of Leasure’s
§ 2244(d)(2) and equitable tolling arguments. Accordingly, COA
is GRANTED, the district court’s judgment of dismissal is
VACATED, and the case is REMANDED to the district court to
consider the aforementioned arguments and, if appropriate, the
merits of Leasure’s underlying constitutional claims. Leasure’s
motion for extraordinary relief is DENIED.
COA GRANTED; VACATED AND REMANDED; MOTION DENIED.