Moore v. Cain

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 7, 2000
• Docket: 99-30858
• Status: Unpublished

Opinion

No. 99-30858 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30858 Summary Calendar

FLOYD J. MOORE, SR.,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Louisiana USDC No. 98-CV-921 - - - - - - - - - - June 28, 2000 Before HIGGINBOTHAM, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Floyd J. Moore, Sr., Louisiana prisoner # 127762, seeks a

certificate of appealability (COA) from the denial of his 28

U.S.C. § 2254 petition as untimely. This court issues a COA only

if the petitioner makes a substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here,

the district court has dismissed a § 2254 petition on a

procedural ground without reaching the prisoner’s underlying

constitutional claims, a COA may not issue unless the prisoner

shows both (1) “that jurists of reason would find it debatable

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-30858 -2-

whether the petition states a valid claim of the denial of a

constitutional right” and (2) that jurists of reason would find

it debatable whether the district court’s procedural holding was

correct. Slack v. McDaniel, 120 S. Ct. 1595, 1600-01 (2000). An

appeal may not proceed unless the prisoner satisfies both

requirements. Id.

The relevant inquiry in Moore’s case concerns the dates

during which his second habeas petition was pending since it is

now considered properly filed in light of Smith v. Ward, 209 F.3d

383 (5th Cir. 2000), whether or not the petition was addressed on

the merits in the state courts. A COA is therefore GRANTED, the

district court’s judgment of dismissal is VACATED, and the case

is REMANDED to the district court for the factual determination

of the dates during which Moore’s second state habeas application

was pending. See Dickinson v. Wainwright, 626 F.2d 1184, 1186

(5th Cir. Unit B 1980) (granting a certificate of probable cause

and remanding case to district court for factual findings). The

district court should then reevaluate, in light of Smith, whether

the pendency of Moore’s second and third state habeas

applications tolled the § 2244(d) limitations period long enough

to deem his May 15, 1998, § 2254 petition timely filed. The

motion for appointment of counsel is DENIED.

COA GRANTED; VACATED AND REMANDED; MOTION DENIED.