United States v. Doublin

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 24, 1999
• Docket: 98-30236
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-30236 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LARRY W. DOUBLIN,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Louisiana USDC No. 95-CR-30024-5 - - - - - - - - - -

May 18, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Larry W. Doublin, federal prisoner No. 09044-035, requests a

certificate of appealability (COA) to appeal the district court’s

dismissal of his 28 U.S.C. § 2255 motion** for failure to comply

with a court order and he requests that this court appoint an

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. ** Regardless of their caption, because Doublin is in custody, his pleadings sound under 28 U.S.C. § 2255 and not as an application for writ of error coram nobis. See Correa-Negron v. United States, 473 F.2d 684, 685 (5th Cir. 1973). No. 98-30236 - 2 -

attorney to represent him on appeal. The motion for appointment

of counsel is DENIED.

The record shows that Doublin timely complied with the

court’s order to file an affidavit in support of his argument for

an out-of-time appeal by attaching the affidavit to a pleading

filed in the district court on October 30, 1997. Thus, the

district court erred by dismissing his motion for failure to

comply with the court’s order. Sonnier v. Johnson, 161 F.3d 941,

943 (5th Cir. 1998). This court lacks jurisdiction to consider

the merits of Doublin’s substantive habeas claims because the

district court did not consider whether a COA should be granted

on those issues. See Whitehead v. Johnson, 157 F.3d 384, 387-88

(5th Cir. 1998). Accordingly, we GRANT a COA and VACATE AND

REMAND to the district court for consideration of Doublin’s

affidavit.

COA GRANTED; VACATED AND REMANDED; MOTION FOR APPOINTMENT OF

COUNSEL DENIED.