Tones v. Quarterman , 235 F. App'x 225 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 23, 2007
Charles R. Fulbruge III
Clerk
No. 06-51401
Summary Calendar
ROYRY GLENN TONES,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:06-CV-683
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Royry Glenn Tones, Texas prisoner # 1237607, was convicted
by a jury of two counts of aggravated robbery and was sentenced
to 75 years in prison. He attempted to file a 28 U.S.C. § 2254petition challenging this conviction, but the district court
dismissed his petition without prejudice pursuant to FED. R. CIV.
P. 41(b) for failing to comply with a court order to pay the
filing fee or request leave to proceed in forma pauperis. Tones
*
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this opinion should not be published and is not precedent except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. 06-51401
-2-
now seeks a certificate of appealability (COA) to challenge this
dismissal.
Because a new petition filed by Tones would be barred by the
limitations period of 28 U.S.C. § 2244(d)(1), the district
court’s dismissal without prejudice operates as a dismissal with
prejudice. See Duncan v. Walker, 533 U.S. 167, 180 (2001); Gray
v. Fidelity Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981).
In his notice of appeal, and again before this court, Tones
asserts that he submitted a timely request for withdrawal of his
funds from his prison account and that this request was mailed in
a timely manner. In light of this, there is no “clear record of
delay or contumacious conduct” by Tones. See Gray, 634 F.2d at
227 (internal quotation marks omitted).
Consequently, reasonable jurists would find it debatable
that the district court erred in dismissing Tones’s petition on
procedural grounds. See Slack v. McDaniel, 529 U.S. 473, 484
(2000). COA is therefore GRANTED on the question whether Tones
attempted to comply in a timely manner with the district court’s
order for payment. This case is REMANDED for consideration of
this issue in the first instance by the district court and for
review of the prison records or an evidentiary hearing, if
necessary. Tones’s motion for leave to proceed in forma pauperis
(IFP) on appeal is likewise GRANTED.