Christopher Emerson v. Rick Thaler, Director

Case: 10-20732 Document: 00511789660 Page: 1 Date Filed: 03/15/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 15, 2012
No. 10-20732
Summary Calendar Lyle W. Cayce
Clerk
CHRISTOPHER J. EMERSON,
Petitioner-Appellant,
versus
RICK THALER, 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. 4:10-CV-3653
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
This court granted Christopher Emerson, Texas prisoner # 451863, a cer-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-20732 Document: 00511789660 Page: 2 Date Filed: 03/15/2012
No. 10-20732
tificate of appealability (“COA”) to appeal the dismissal of his 28 U.S.C. § 2254petition as an unauthorized successive petition. See Emerson v. Thaler, No.
10-20732, slip op. (5th Cir. May 16, 2011). Emerson, however, has not briefed
the issue on which COA was granted, i.e., whether, under Castro v. United
States, 540 U.S. 375, 383-84 (2003), his prior pleading should count for purposes
of the successive-authorization requirement. See id.Contrary to Emerson’s assertion in his reply brief, this court did not hold
that Castro is applicable to his case. See Emerson, No. 10-20732, slip op. at 2.
We stated that it is arguable that Castro is applicable. See id. Emerson makes
no argument that Castro is applicable, that he was not warned of the conse-
quences of the recharacterization of his 2007 pleading as a § 2254 petition, or
that, because Castro is applicable and he was not warned, the recharacterization
does not count as a prior petition for successive-authorization purposes.
Although pro se briefs are liberally construed, even pro se litigants must brief
arguments to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993). Because Emerson has failed to brief the sole issue on which a COA was
granted, he has waived that issue, and the judgment is AFFIRMED. Emerson’s
motion to supplement the record is DENIED.
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