Malcolm T. Booker v. James A. Lynaugh, Etc.

Fifth Circuit

Malcolm T. Booker v. James A. Lynaugh, Etc.

872 F.2d 100, 1989 U.S. App. LEXIS 5534, 1989 WL 35968

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 14, 1989

Docket88-2380

StatusPublished

Cited by6 cases

This text of 872 F.2d 100 (Malcolm T. Booker v. James A. Lynaugh, Etc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Malcolm T. Booker v. James A. Lynaugh, Etc., 872 F.2d 100, 1989 U.S. App. LEXIS 5534, 1989 WL 35968 (5th Cir. 1989).

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Opinion

BY THE COURT:

Petitioner Malcolm T. Booker moves this Court for a certificate of probable cause to appeal the denial of his habeas corpus petition. Booker also moves to proceed in forma pauperis on appeal and for appointment of appellate counsel. We GRANT CPC and IFP, VACATE the district court’s judgment and REMAND for further proceedings. Booker’s motion for appointment of counsel is DENIED as moot.

The district court dismissed Booker’s ha-beas corpus petition based upon the magistrate’s recommendation. Four of Booker’s nine claims were dismissed on the merits and the remaining claims were found to be procedurally barred. The Texas state district court did not rule on the habeas petition because it was filed while Booker’s appeal was pending in the Texas Court of Criminal Appeals. The Texas Court of Criminal Appeals denied Booker’s application for habeas relief without opinion on a form order that stated, “Application denied without written order.” The federal district court, pursuant to Preston v. Maggio, *101 705 F.2d 113, 116 (5th Cir.1983), concluded that the state court applied a procedural bar to the claims in question. In Harris v. Reed, — U.S. -, - - -, 109 S.Ct. 1038, 1041-45, 103 L.Ed.2d 308 (1989), the United States Supreme Court recently overruled Preston in this regard when it held that “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Here, there was no clear and express statement by either state court that it was relying on a state procedural bar in denying habeas relief. We would draw the state courts’ attention to the footnote in Harris which observes that a state court may continue to rely on a procedural bar by modifying its form orders, like the one issued in this case, to state, where applicable, that “relief is denied for reasons of procedural default.” Harris, — U.S. at - n. 12, 109 S.Ct. at 1044 n. 12. Accordingly, the district court is not precluded from reviewing Booker’s claims. We vacate the district court’s judgment and remand the case for further proceedings.

VACATED and REMANDED.

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BY THE COURT:

Petitioner Malcolm T. Booker moves this Court for a certificate of probable cause to appeal the denial of his habeas corpus petition. Booker also moves to proceed in forma pauperis on appeal and for appointment of appellate counsel. We GRANT CPC and IFP, VACATE the district court’s judgment and REMAND for further proceedings. Booker’s motion for appointment of counsel is DENIED as moot.

The district court dismissed Booker’s ha-beas corpus petition based upon the magistrate’s recommendation. Four of Booker’s nine claims were dismissed on the merits and the remaining claims were found to be procedurally barred. The Texas state district court did not rule on the habeas petition because it was filed while Booker’s appeal was pending in the Texas Court of Criminal Appeals. The Texas Court of Criminal Appeals denied Booker’s application for habeas relief without opinion on a form order that stated, “Application denied without written order.” The federal district court, pursuant to Preston v. Maggio, *101 705 F.2d 113, 116 (5th Cir.1983), concluded that the state court applied a procedural bar to the claims in question. In Harris v. Reed, — U.S. -, - - -, 109 S.Ct. 1038, 1041-45, 103 L.Ed.2d 308 (1989), the United States Supreme Court recently overruled Preston in this regard when it held that “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Here, there was no clear and express statement by either state court that it was relying on a state procedural bar in denying habeas relief. We would draw the state courts’ attention to the footnote in Harris which observes that a state court may continue to rely on a procedural bar by modifying its form orders, like the one issued in this case, to state, where applicable, that “relief is denied for reasons of procedural default.” Harris, — U.S. at - n. 12, 109 S.Ct. at 1044 n. 12. Accordingly, the district court is not precluded from reviewing Booker’s claims. We vacate the district court’s judgment and remand the case for further proceedings.

VACATED and REMANDED.

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872 F.2d 100, 1989 U.S. App. LEXIS 5534, 1989 WL 35968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malcolm-t-booker-v-james-a-lynaugh-etc-ca5-1989.

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