Muhammad v. Cain ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31337
Summary Calendar
ABDULLAH MUHAMMAD, also known was Kirk Spencer,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 98-CV-2510-T
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July 11, 2000
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Abdullah Muhammad (“Muhammad”), Louisiana prisoner # 107286,
seeks a certificate of appealability (“COA”) to appeal the
district court’s denial of his 28 U.S.C. § 2254 petition. See
§ 2253(c)(1)(A). He argues that the district court erred in
dismissing, on the merits, his claim that counsel rendered
ineffective assistance by failing to cross-examine a witness
properly. Muhammad also argues that the district court erred in
dismissing, on failure-to-exhaust grounds, his claim that counsel
*
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that this opinion should not be published and is not precedent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. 99-31337
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was ineffective for failing to file a motion to reconsider his
sentence.
To obtain a COA for constitutional issues, Muhammad 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, such as whether the district court correctly
dismissed a claim in a § 2254 petition for failure to exhaust,
Muhammad must show that “jurists of reason would find it
debatable whether [he] 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.” Slack v. McDaniel, 120 S. Ct. 1595, 1604
(2000).
Muhammad has failed to make a substantial showing of the
denial of a constitutional right with respect to his first
argument. He has failed to show that the district court erred in
dismissing his claim that counsel rendered ineffective assistance
by failing to cross-examine a witness properly. See Strickland
v. Washington, 466 U.S. 668, 688 (1984). COA to appeal the first
argument is DENIED.
Muhammad has shown that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling to dismiss his second argument for failure to
exhaust and whether he stated a valid claim of the denial of a
constitutional right. Muhammad exhausted his available state
remedies with his “valid” claim that counsel was ineffective for
No. 99-31337
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failing to file a motion to reconsider his sentence. COA to
appeal the second argument is GRANTED.
The district court’s judgment dismissing, on failure-to-
exhaust grounds, Muhammad’s claim that counsel was ineffective
for failing to file a motion to reconsider his sentence is hereby
VACATED, and this case is REMANDED to the district court for
consideration of the claim.