Willingham v. Cockrell

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 21, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _____________________ Clerk

No. 02-10133 _____________________

CAMERON TODD WILLINGHAM

Petitioner - Appellant

v.

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION

Respondent - Appellee

--------------------- Appeal from the United States District Court for the Northern District of Texas ---------------------

ON PETITION FOR REHEARING

Before JOLLY, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Approximately one week after we denied Willingham’s

application for a certificate of appealability (“COA”) to appeal

the district court’s denial of federal habeas relief, the Supreme

Court rendered its decision in Miller-El v. Cockrell, 123 S.Ct.

1029 (2003). In Miller-El, the Supreme Court reiterated the

standards for issuance of COAs that it had announced previously in

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Slack v. McDaniel, 529 U.S. 473 (2000). Miller-El, 123 S. Ct. at

1039. The Supreme Court instructed, as it had previously held in

Slack, that we should “limit [our] examination to a threshold

inquiry into the underlying merit of [the petitioner’s] claims.”

Id. at 1034. The Court observed that “a COA ruling is not the

occasion for a ruling on the merit of petitioner’s claim....” Id.

at 1036. Instead, the determination must be based on “an overview

of the claims in the habeas petition and a general assessment of

their merits.” Id. at 1039. “This threshold inquiry does not

require full consideration of the factual or legal bases adduced in

support of the claims.” Id. We do not have jurisdiction to

justify our denial of a COA based on an adjudication of the actual

merits of the claims. Id. Accordingly, we cannot deny an

“application for a COA merely because [we believe] the applicant

will not demonstrate an entitlement to relief.” Id. “[A] claim

can be debatable even though every jurist of reason might agree,

after the COA has been granted and the case has received full

consideration, that petitioner will not prevail.” Id.

We have reconsidered Willingham’s COA application in the light

of the Supreme Court’s decision in Miller-El. Based on our

overview of the claims and general assessment of their merits, we

remain convinced that reasonable jurists would not find the

district court’s assessment of those claims debatable or wrong.

2 Accordingly, Willingham’s petition for reconsideration, treated as

a petition for rehearing, is DENIED.