Moore v. Cain ( 2000 )

No. 99-30858
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30858
Summary Calendar
FLOYD J. MOORE, SR.,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana
State Penitentiary,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 98-CV-921
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June 28, 2000
Before HIGGINBOTHAM, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Floyd J. Moore, Sr., Louisiana prisoner # 127762, seeks a
certificate of appealability (COA) from the denial of his 28
U.S.C. § 2254 petition as untimely. This court issues a COA only
if the petitioner makes a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here,
the district court has dismissed a § 2254 petition on a
procedural ground without reaching the prisoner’s underlying
constitutional claims, a COA may not issue unless the prisoner
shows both (1) “that jurists of reason would find it debatable
*
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that this opinion should not be published and is not precedent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. 99-30858
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whether the petition states a valid claim of the denial of a
constitutional right” and (2) that jurists of reason would find
it debatable whether the district court’s procedural holding was
correct. Slack v. McDaniel, 120 S. Ct. 1595, 1600-01 (2000). An
appeal may not proceed unless the prisoner satisfies both
requirements. Id.
The relevant inquiry in Moore’s case concerns the dates
during which his second habeas petition was pending since it is
now considered properly filed in light of Smith v. Ward, 209 F.3d
383 (5th Cir. 2000), whether or not the petition was addressed on
the merits in the state courts. A COA is therefore GRANTED, the
district court’s judgment of dismissal is VACATED, and the case
is REMANDED to the district court for the factual determination
of the dates during which Moore’s second state habeas application
was pending. See Dickinson v. Wainwright, 626 F.2d 1184, 1186
(5th Cir. Unit B 1980) (granting a certificate of probable cause
and remanding case to district court for factual findings). The
district court should then reevaluate, in light of Smith, whether
the pendency of Moore’s second and third state habeas
applications tolled the § 2244(d) limitations period long enough
to deem his May 15, 1998, § 2254 petition timely filed. The
motion for appointment of counsel is DENIED.
COA GRANTED; VACATED AND REMANDED; MOTION DENIED.