Ware v. State of Mississippi

Opinion

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED May 28, 2021 No. 20-60518 Lyle W. Cayce

Clerk

David Ware,

Petitioner—Appellant,

versus

Burl Cain, Commissioner, Mississippi Department of Corrections,

Respondent—Appellee.

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:20-CV-28

ORDER: David Ware, Mississippi prisoner # 214212, was convicted of selling a controlled substance. He now seeks a certificate of appealability (“COA”) under 28 U.S.C. § 2253(c). The district court dismissed his petition, concluding his claims were procedurally defaulted or barred from federal review. With the benefit of liberal construction, Ware argues that the district court erred in its procedural ruling. To obtain a COA, Ware must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483 (2000). Where, as here, the district court dismissed his petition on procedural grounds, Ware is required to demonstrate “that jurists No. 20-60518

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, 529 U.S. at 484. Ware has not made the requisite showing. Accordingly, his motion fora COA is DENIED.

ANDREW S. OLDHAM United States Circuit Judge

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aN “ee ae & ~ Ss tare Certified as a true copy and issued as the mandate on Jun 21, 2021 Attest: J uf W. Comte Clerk, U.S. Court of Appeals, Fifth Circuit