Caldwell v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-20344
No. 06-20089
Summary Calendar
CAREY BERNARD CALDWELL, also known as Bernard Talib Din Hasan,
Petitioner-Appellant,
versus
THE STATE OF TEXAS,
Respondent-Appellee,
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CAREY BERNARD CALDWELL, also known as Bernard Talib Din Hasan,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeals from the United States District Court
for the Southern District of Texas
No. 4:05-CV-643
No. 4:05-CV-2529
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Nos. 05-20344 and 06-20089
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Carey Caldwell was convicted by a jury of aggregate theft by
deception and sentenced to a 55-year term. He seeks certificates
of appealability (“COA’s”) to appeal the dismissals of two actions
that were considered as 28 U.S.C. § 2254 petitions by the district
court. We have consolidated these matters for appellate review.
See FED. R. APP. P. 3(b)(2).
To obtain a COA, Caldwell must make a substantial showing of
the denial of a constitutional right. § 2253(c)(2). Such a show-
ing requires that he “demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Where the district court’s denial of federal habeas relief is based
on procedural grounds rather than the underlying constitutional
claims, “a COA should issue 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.
*
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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
Nos. 05-20344 and 06-20089
-3-
No. 05-20344
Caldwell argues in No. 05-20344 that the district court erred
by treating his filing as a federal habeas petition and dismissing
it on the merits. He contends that the action did not seek relief
from his conviction or his sentence.
Caldwell’s district court filings complained that he had been
denied a copy of his state trial records. He did not ask for any
relief from his sentence, nor did he ask that the federal court
order him released from confinement or modify, in any respect, the
conditions of his confinement. Accordingly, his action should have
been treated as a 42 U.S.C. § 1983 action seeking a copy of his
state trial records. See Rhueark v. Shaw, 547 F.2d 1257, 1258 (5th
Cir. 1977). The motion for a COA is granted. See Slack, 529 U.S.
at 484. The judgment is vacated, and the matter is remanded for
further proceedings. See Rhueark, 547 F.2d at 1258.
No. 06-20089
Caldwell contends in No. 06-20089 that the district court
erred by dismissing his § 2254 petition without prejudice. Cald-
well does not contest the district court’s determination that his
was a mixed petition because it contained both exhausted and un-
exhausted claims. He contends, however, that the decision to dis-
miss the § 2254 petition rather than to hold it in abeyance was an
abuse of discretion, given that his petition will likely be time-
Nos. 05-20344 and 06-20089
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barred under § 2244(d) if he is required to refile after exhausting
state remedies.
Caldwell has failed to show that reasonable jurists would find
debatable the dismissal of his § 2254 petition in No. 06-20089 as
a mixed petition. See Slack, 529 U.S. at 484; see also Rhines v.
Weber, 544 U.S. 269, 278-79 (2005). Accordingly, The application
for a COA in No. 06-20089 is DENIED.
NO. 05-20344: COA GRANTED; JUDGMENT VACATED; REMANDED FOR
FURTHER PROCEEDINGS.
NO. 06-20089: COA DENIED.