Robichaux v. Cain

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 14, 2005
Charles R. Fulbruge III
Clerk
No. 05-30136
Summary Calendar
BARTHOLOMESS ROBICHAUX,
Petitioner-Appellant,
versus
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CV-1945
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Bartholomess Robichaux, Louisiana prisoner # 91571, requests
a Certificate of Appealability (COA) to appeal the district court’s
dismissal of his 28 U.S.C. § 2254 petition as time-barred.
Robichaux argues that his 28 U.S.C. § 2254 petition was timely
because he timely mailed his writ application to the Louisiana
Supreme Court while incarcerated at Orleans Parish Prison in March
2001.
*
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this opinion should not be published and is not precedent except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. 05-30136
-2-
To obtain a COA, Robichaux must make a substantial showing of
the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
When, as here, a district court dismisses a habeas petition on
procedural grounds without reaching the underlying constitutional
claims, a COA may not issue unless the prisoner shows 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.” Slack v. McDaniel,
529 U.S. 473, 484 (2000).
Robichaux has shown that reasonable jurists would debate
whether the district court’s procedural ruling was correct and has
also shown that his petition states a claim for the denial of a
constitutional right. See id. Accordingly, a COA is hereby
GRANTED.
Rule X § 5(a) of the Louisiana Supreme Court Rules provides
that a petition for review of a decision of a court of appeal must
be filed within 30 days of the mailing of the notice of the
original judgment of the court of appeal. Rule X § 5(d) provides
that an application for a writ is deemed timely if mailed before
the filing deadline. Thus the very language of the rule itself
defines filing as timely mailing, and no resort to a mailbox rule
is required. Documents submitted by Robichaux on appeal as well as
filings of record and the subsequent treatment of his writ on
direct appeal in the state courts indicate that his writ
No. 05-30136
-3-
application was timely filed. See Grillette v. Warden, 372 F.3d
765, 775 (5th Cir. 2004); State v. Sosa, 888 So. 2d 192 (La. 2004).
The district court’s judgment denying Robichaux’s 28 U.S.C.
§ 2254 petition as time-barred is hereby VACATED, and this case is
REMANDED to the district court for consideration of the
constitutional claims set forth in Robichaux’s 28 U.S.C. § 2254petition.
GRANT COA; VACATE and REMAND.