Pierce v. Dretke

170 F. App'x 333

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 8, 2006
• Docket: 04-20175
• Status: Unpublished

Opinion

PER CURIAM: *

Roy Jackson Pierce, Texas prisoner # 932636, pleaded guilty to assault and was sentenced to 15 years in prison. He seeks a certificate of appealability (COA) to appeal the district court’s dismissal as untimely of his 28 U.S.C. § 2254 petition challenging this conviction. Pierce’s motion to compel this court to consider his COA application in an expedient manner is DENIED.

In order to obtain a COA, Pierce must show “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Pierce has established that reasonable jurists would debate whether the district court correctly dismissed his federal petition as untimely pursuant to 28 U.S.C. § 2244(d)(1). See Foreman v. Dretke, 383 F.3d 336, 340 (5th Cir.2004); Tex.R.App. P. 49.1, 49.8, 68.2(a). Pierce’s allegations in the district court and in his COA application “demonstrate that reasonable jurists could debate whether [Pierce] has made a valid claim of a constitutional dimension.” Houser v. Dretke, 395 F.3d 560, 562 (5th Cir.2004). Consequently, Pierce’s motion for a COA is GRANTED, and the case is REMANDED for further proceedings consistent with this ruling. Pierce’s motion for appointment of counsel on appeal is DENIED.

COA GRANTED; MOTION FOR APPOINTMENT OF COUNSEL DENIED; MOTION TO COMPEL DENIED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.