Robertson v. Cain ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30315
DONALD RAY ROBERTSON,
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. 99-CV-1207-B
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November 20, 2000
Before SMITH, BENAVIDES and DENNIS, Circuit Judges.
PER CURIAM:*
Donald Ray Robertson, Louisiana prisoner #120418, seeks a
certificate of appealability (COA) to appeal the dismissal of his
28 U.S.C. § 2254 petition as time-barred by the one-year statute
of limitations in § 2244(d). The district court determined that
Robertson’s third state application for postconviction relief,
which was dismissed as untimely pursuant to Louisiana Code of
Criminal Procedure article 930.8, was not “properly filed” as
that term is used in § 2244(d)(2), and thus, failed to toll the
limitations period.
*
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this opinion should not be published and is not precedent except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. 00-30315
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Our recent opinion in Smith v. Ward, 209 F.3d 383, 385 (5th
Cir. 2000), shows that Robertson’s third state application for
postconviction relief was “properly filed” for purposes of
§ 2244(d) and that it tolled the limitations period. When this
tolling is added to the tolling during the pendency of
Robertson’s second state postconviction application, Robertson’s
federal habeas application is timely. Thus, Robertson has
established that the district court erred by dismissing his
petition as untimely. Slack v. McDaniel, 120 S. Ct. 1595, 1604
(2000).
Robertson’s § 2254 petition states only one claim, i.e.,
that he was denied due process because of an improper jury
instruction on the law of principals. This claim, if supported
by the record, is facially adequate to warrant a grant of habeas
relief. See Flowers v. Blackburn, 779 F.2d 1115, 1119-23 (5th
Cir. 1986)(similar jury instruction found unconstitutional).
Robertson has shown, therefore, that reasonable jurists could
find it debatable whether his habeas petition states a valid
claim of the denial of a constitutional right.1 See Slack, 120
S. Ct. at 1604. Because it is generally preferable for the
district court to make the first assessment of the merits of a
habeas petitioner’s constitutional claims, see, e.g., Jefferson
v. Welborn, 222 F.3d 286, 289 (7th Cir. 2000), COA is GRANTED,
the judgment is VACATED, and this case is REMANDED to the
district court for consideration of the merits of Robertson’s
1
Because the state courts addressed the merits of
Robertson’s claim, the procedural bar is inapplicable. See
§ 2254(d).
No. 00-30315
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claim that he was denied due process because of an improper jury
instruction on the law of principals.
COA GRANTED; JUDGMENT VACATED; REMANDED.