Weaver v. Dretke ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 26, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-20224
Summary Calendar
CALVIN EDWARD WEAVER,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-04-CV-60
--------------------
Before HIGGINBOTHAM, JONES and PRADO, Circuit Judges.
PER CURIAM:*
Calvin Edward Weaver, a Texas prisoner (# 820796),
seeks a certificate of appealability (“COA”) to appeal the
district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus
application as successive. In the alternative, Weaver moves for
authorization to file a successive 28 U.S.C. § 2254 application.
This court issues a COA to an applicant only if he makes
“a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 123 S. Ct. 1029,
*
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that this opinion should not be published and is not precedent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. 04-20224
- 2 -
1039 (2003). When a district court denies 28 U.S.C. § 2254relief on procedural grounds, the applicant must show that his
habeas application 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, 529 U.S. 473, 484 (2000).
In his COA application, Weaver fails to address the specific
issue whether the district court erred in dismissing his petition
as successive and has thus waived the only cognizable issue in
his appeal. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir.
1999); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.3d
744, 748 (5th Cir. 1987). Because Weaver has failed to show that
jurists of reason would find it debatable whether the district
court erred in dismissing his petition as successive, his request
for a COA is DENIED. See Slack, 529 U.S. at 484.
To obtain authorization to file a successive habeas corpus
application, Weaver must make a prima facie showing that his
claims are based on either (A) “a new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable,” or (B) a factual
predicate that could not have been discovered previously “through
the exercise of due diligence” and that, “if proven and viewed in
light of the evidence as a whole, would be sufficient to establish
by clear and convincing evidence that, but for constitutional
error, no reasonable factfinder would have found the applicant
guilty of the offense.” 28 U.S.C. § 2244(b)(2)(A) and (B)(i),
(ii). Because Weaver has not made a showing of either, his
No. 04-20224
- 3 -
alternative motion for authorization to file a successive
28 U.S.C. § 2254 application is DENIED as well.
COA DENIED; MOTION FOR AUTHORIZATION TO FILE SUCCESSIVE
HABEAS APPLICATION DENIED.