Goss v. Johnson

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 6, 2004
• Docket: 96-40548
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 96-40548 Summary Calendar _______________________

REGINALD R. GOSS,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; ATTORNEY GENERAL, STATE OF TEXAS,

Respondents-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (C-95-CV-556) _________________________________________________________________

February 24, 1997

Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Reginald R. Goss, Texas prisoner #684326, appeals the

district court’s dismissal of the 28 U.S.C. § 2254 petition for

failure to exhaust his state remedies. Goss is now required to

obtain a certificate of appealability (COA) in order to appeal the

district court’s order. We will not issue a COA, however, as Goss

has not made a substantial showing of the denial of a

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. constitutional right. See 28 U.S.C. § 2253(c)(2); see also

Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir. 1996). In the

alternative, if the district court was authorized to issue COA, we

conclude that because the state record indicates that Goss failed

to present his claim that the prosecution withheld exculpatory

evidence to the Texas Court of Criminal Appeals, the district court

did not err in dismissing Goss’ § 2254 petition for failure to

exhaust his state remedies. See Dispensa v. Lynaugh. 847 F.2d

211, 217-18 (5th Cir. 1988).

For the foregoing reasons, COA is DENIED; and the

judgment is AFFIRMED.