Angel v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-21100
HARVEY DALE ANGEL,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-2182
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October 22, 1999
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Harvey Dale Angel, Texas prisoner # 638529, seeks a
certificate of appealability (COA) to appeal from the dismissal
of his 28 U.S.C. § 2254 petition as untimely. He further seeks a
COA to appeal the denial of his underlying constitutional claims.
To obtain a COA, an applicant must make a substantial
showing of the denial of a constitutional right. See
*
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that this opinion should not be published and is not precedent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. 98-21100
-2-
§ 2253(c)(2); Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir.
1996). In considering a nonconstitutional question in a COA
application, such as the limitations issue presented here, the
petitioner must first make a credible showing of error by the
district court. See Sonnier v. Johnson, 161 F.3d 941, 943-44
(5th Cir. 1998). Only if the petitioner succeeds in doing so
will the court consider whether he has made a substantial showing
of the denial of a constitutional right on his underlying claims.
Id.Angel has made a credible showing that the district court
erred in dismissing his § 2254 petition as untimely. Under this
court’s recent decision in Villegas v. Johnson, F.3d (5th
Cir. Aug. 9, 1999, No. 98-10298), 1999 WL 595157, the filing of
Angel’s second petition for state habeas corpus relief served to
toll the one-year limitations period under § 2244(d)(2). Id. at
*3. As Angel filed his § 2254 petition while this second state
habeas petition was pending, his federal habeas petition was
timely. Id.
Because the district court’s order dismissing Angel’s
petition did not address the merits of his underlying claims,
however, this court lacks jurisdiction to consider his request
for a COA with regard to those claims. See Sonnier, 161 F.3d at
945-46. Accordingly, Angel is hereby GRANTED a COA on the
question of the timeliness of his § 2254 petition, the district
court’s judgment dismissing his petition as time-barred is
No. 98-21100
-3-
VACATED, and this case REMANDED with instructions to address the
merits of Angel’s constitutional violations.
VACATED AND REMANDED.