Estelle v. Anderson ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60279
USDC No. 1:96-CV-159-GG
RONALD ESTELLE,
Petitioner-Appellant,
versus
JAMES V. ANDERSON, SUPERINTENDENT,
MISSISSIPPI STATE PENITENTIARY,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
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July 13, 1999
Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Ronald Estelle, Mississippi prisoner # 44851, requests a
certificate of probable cause (CPC) to appeal the district
court’s denial of his 28 U.S.C. § 2254 petition. Estelle argues
that (1) the trial court erred in not considering Eighth
Amendment proportionality at sentencing; (2) he was denied
representation of counsel at sentencing despite his failure to
waive the right; and (3) the district court erred in determining
that the documents to support a habitual-offender finding were
insufficient.
*
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that this opinion should not be published and is not precedent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. 98-60279
- 2 -
Estelle has shown that the trial court believed it did not
have discretion in sentencing and has indicated that discretion
did exist. However, the district court did not consider this
issue in its review. Therefore, CPC is GRANTED and the denial of
habeas relief is VACATED AND REMANDED as to that issue only. See
Dickinson v. Wainwright, 626 F.2d 1184, 1185 (5th Cir. Unit B
1980)(authorizing grant of CPC, reversal and remand at the same
time).
A grant of CPC raises all underlying issues for appellate
review. However, Estelle has not made a showing that the
district court erred in adopting the findings of the state court
regarding the sufficiency of the habitual-offender evidence or
that he was prejudiced by his representation at sentencing.
Therefore, the district court’s decision as to these issues is
AFFIRMED. Other issues considered by the district court, such as
the ineffective assistance of counsel at trial, ineffective
assistance of appellate counsel, and the state procedural bar
prohibiting review of his defective-indictment claim, are not
raised in his CPC motion and are considered abandoned. Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1995).
CPC GRANTED; AFFIRMED IN PART, VACATED AND REMANDED IN PART.