Harvey v. Johnson ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-11265
USDC No. 4:97-CV-885-A
RICHARD HARVEY,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEP’T OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
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April 15, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
BY THE COURT:
Richard Harvey, Texas prisoner #702831, seeks a certificate
of appealability (COA) to appeal from the dismissal of his habeas
corpus petition as time-barred pursuant to 28 U.S.C. § 2244(d).
When the district court’s denial of the motion was based upon a
procedural, non-constitutional reason, such as a limitations
period, this court employs a two-step process. Murphy v.
Johnson, 110 F.3d 10, 11 (5th Cir. 1997). First, this court must
decide if Harvey has made a credible showing that his claim is
not procedurally barred. Second, this court must determine if
O R D E R
No. 97-11265
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Harvey’s underlying claim that he was denied a constitutional
right is debatable among reasonable jurists. Id.
It is unclear from the record whether success on Harvey’s
claims would entitle him to immediate or accelerated release or
rather would merely enhance his eligibility for release. If the
former, then Harvey’s action was governed by 28 U.S.C. § 2254.
If the latter, then Harvey’s action was governed by 42 U.S.C.
§ 1983. See Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995).
The characterization of Harvey’s action is a determination that
the district court should make in the first instance. Serio v.
Members of Louisiana State Bd. of Pardons, 821 F.2d 1112, 1119
(5th Cir. 1987). Therefore, IT IS ORDERED that Harvey’s motion
for a COA is GRANTED. The district court’s order dismissing
Harvey’s action as time-barred is VACATED and the case is
REMANDED for proceedings consistent with this order.