Pierre v. Hooper ( 2022 )

Case: 19-30737 Document: 00516507435 Page: 1 Date Filed: 10/13/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 13, 2022
No. 19-30737 Lyle W. Cayce
Clerk
Delis Pierre,
Petitioner—Appellant,
versus
Timothy Hooper, Warden, Elayn Hunt Correctional Center,
Respondent—Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:15-CV-5252
Before Smith, Duncan, and Oldham, Circuit Judges.
Per Curiam: *
Delis Pierre, Louisiana prisoner #498929, filed a petition in the
district court under 28 U.S.C. § 2254 challenging his state convictions for
armed robbery, kidnapping, and purse snatching on various constitutional
grounds. The district court dismissed the petition as time-barred and denied
Pierre a certificate of appealability (COA). Pierre then asked our court to
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-30737
grant him a COA on both the district court’s procedural ruling as well as the
substantive claims in his § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A). A
judge of our court granted a COA, but only “in part as to the district court’s
procedural dismissal of the petition as time barred.” A COA was not granted
on any substantive constitutional claim. Instead, the COA stated only that
“Pierre’s petition reflects facially valid constitutional claims,” and that “the
available pleadings and record do not clearly show that a COA is not
warranted.”
The COA fails to meet the statutory requirements for issuance. A
COA “may issue . . . only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Moreover, the
COA “shall indicate which specific issue or issues satisfy the showing
required by paragraph (2).” Id. § 2253(c)(3). Pierre’s COA fails these
standards. While it “identifie[s] a debatable procedural ruling” (the
timeliness issue), the COA “d[oes] not ‘indicate’ the issue on which [Pierre]
had made a substantial showing of the denial of a constitutional right, as
required by § 2253(c)(3).” Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). On
that ground alone, Pierre’s COA is “defect[ive].” Ibid.Nothing in Slack v. McDaniel, 529 U.S. 473 (2000), rescues Pierre’s
COA. Slack explained that, when a habeas petition is denied on procedural
grounds alone, § 2253 allows issuance of a COA only
when the prisoner shows, at least, that jurists of reason would
find it debatable whether the petition 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.
Id. at 484. The Court emphasized that “Section 2253 mandates that both
showings be made before the court of appeals may entertain the appeal.” Id.
at 485 (emphasis added). The COA at issue here, however, does not find that
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Pierre made both showings. As discussed, a COA was expressly granted only
as to timeliness—a procedural issue—and not as to any constitutional issue.
And even assuming arguendo that the COA also meant to indicate some
constitutional issue, it did not find that “jurists of reason” would find
“debatable” any of the constitutional issues raised by Pierre. See id. at 484.
The COA merely stated in passing, without further elaboration, that
“Pierre’s petition reflects facially valid constitutional claims.” Slack requires
more than that. More importantly, so did Congress in § 2253. A “facially
valid constitutional claim,” whatever that means, is not “a substantial
showing of the denial of a constitutional right,” which is the standard § 2253
erects for granting a COA. 28 U.S.C. § 2253(c)(2). The COA in this case
does not even purport to make such a finding on the constitutional issues
raised in Pierre’s § 2254 petition.
In sum, Pierre’s “procedural-only” COA is barred by § 2253. United
States v. Castro, 30 F.4th 240, 245 (5th Cir. 2022); see also id. at 244 ( “The
Supreme Court unanimously agreed that such a COA is invalid because it
says nothing at all about the Constitution.” (citing Gonzalez, 565 U.S. at 141;
id. at 155 (Scalia, J., dissenting))). Our court recently “forsw[ore] procedural-
only COAs” and recognized that we can raise that defect sua sponte and
vacate the COA. Id. at 245, 246. We do so here.
To be sure, we can also issue a valid COA in place of the invalid one.
See id. at 247 (citing United States v. Smith, 945 F.3d 860, 863 (5th Cir. 2019)).
Not here, though. Having examined the constitutional claims in Pierre’s
§ 2254 petition, we cannot say he has made a substantial showing as to any of
them. 28 U.S.C. § 2253(c)(2); see also generally State v. Pierre, No. 202-KA-
0125 (La. App. 1 Cir. 9/21/12); 111 So. 3d 64 (affirming Pierre’s convictions
and sentences), writ denied, No. 2012-KO-2227 (La. 4/1/13); 110 So. 3d 139(Mem.). We therefore decline to issue an amended COA.
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COA VACATED; APPEAL DISMISSED.
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