Estelle v. Anderson

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 13, 1999
• Docket: 98-60279
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-60279 USDC No. 1:96-CV-159-GG

RONALD ESTELLE,

Petitioner-Appellant,

versus

JAMES V. ANDERSON, SUPERINTENDENT, MISSISSIPPI STATE PENITENTIARY,

Respondent-Appellee.

--------------------- Appeal from the United States District Court for the Southern District of Mississippi ---------------------

July 13, 1999

Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Ronald Estelle, Mississippi prisoner # 44851, requests a

certificate of probable cause (CPC) to appeal the district

court’s denial of his 28 U.S.C. § 2254 petition. Estelle argues

that (1) the trial court erred in not considering Eighth

Amendment proportionality at sentencing; (2) he was denied

representation of counsel at sentencing despite his failure to

waive the right; and (3) the district court erred in determining

that the documents to support a habitual-offender finding were

insufficient.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-60279 - 2 -

Estelle has shown that the trial court believed it did not

have discretion in sentencing and has indicated that discretion

did exist. However, the district court did not consider this

issue in its review. Therefore, CPC is GRANTED and the denial of

habeas relief is VACATED AND REMANDED as to that issue only. See

Dickinson v. Wainwright, 626 F.2d 1184, 1185 (5th Cir. Unit B

1980)(authorizing grant of CPC, reversal and remand at the same

time).

A grant of CPC raises all underlying issues for appellate

review. However, Estelle has not made a showing that the

district court erred in adopting the findings of the state court

regarding the sufficiency of the habitual-offender evidence or

that he was prejudiced by his representation at sentencing.

Therefore, the district court’s decision as to these issues is

AFFIRMED. Other issues considered by the district court, such as

the ineffective assistance of counsel at trial, ineffective

assistance of appellate counsel, and the state procedural bar

prohibiting review of his defective-indictment claim, are not

raised in his CPC motion and are considered abandoned. Yohey v.

Collins, 985 F.2d 222, 225 (5th Cir. 1995).

CPC GRANTED; AFFIRMED IN PART, VACATED AND REMANDED IN PART.