Ricky Stroble v. Lorie Davis, Director ( 2018 )


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  •      Case: 16-20442      Document: 00514509246         Page: 1    Date Filed: 06/12/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-20442                            FILED
    Summary Calendar                      June 12, 2018
    Lyle W. Cayce
    Clerk
    RICKY LEE STROBLE,
    Petitioner–Appellant,
    v.
    LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
    JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
    Respondent–Appellee.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:15-CV-3290
    Before JOLLY, OWEN, and HAYNES, Circuit Judges.
    PER CURIAM: *
    Ricky Lee Stroble, Texas prisoner # 1594772, appeals the district court’s
    decision to dismiss as time barred his 28 U.S.C. § 2254 application in which he
    sought to challenge his convictions and sentences for aggravated sexual
    assault of a child younger than 14 years old and indecency with a child. This
    court granted Stroble a certificate of appealability (COA) on the issue whether
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-20442     Document: 00514509246      Page: 2   Date Filed: 06/12/2018
    No. 16-20442
    the amended state postconviction applications that Stroble submitted in April
    2012 were properly filed thus tolling the one-year statute of limitations under
    28 U.S.C. § 2244(d)(2).
    Although we liberally construe briefs filed by pro se litigants, even they
    must brief arguments in order to preserve them. Yohey v. Collins, 
    985 F.2d 222
    , 224-25 (5th Cir. 1993); see also FED. R. APP. P. 28(a) (enumerating what
    an appellant’s brief must contain). In his opening brief, Stroble presses the
    merits of the substantive claims he raised in his § 2254 application. Because
    he has failed to argue that his April 2012 submissions were properly filed in
    the state court, he has abandoned the sole issue on which this court granted a
    COA. See Goodrum v. Quarterman, 
    547 F.3d 249
    , 259 n.49 (5th Cir. 2008)
    (explaining that arguments not raised in a § 2254 applicant’s opening brief in
    this court are waived).
    Stroble is incorrect in contending in his reply brief that, in granting a
    COA, this court agreed with his position that his April 2012 state court writs
    were properly filed under § 2244(d)(2). The COA inquiry does not permit this
    court to engage in a full consideration of the factual and legal bases for the
    claim; thus, an applicant can obtain a COA without establishing that an appeal
    will succeed.   Miller-El v. Cockrell, 
    537 U.S. 322
    , 336 (2003).       Indeed, in
    granting a COA, this court determined only that reasonable jurists would
    debate whether Stroble’s position was correct. The effect of the COA was
    simply to afford Stroble the ability to have this issue fully considered on appeal.
    Accordingly, the district court’s judgment is AFFIRMED. Stroble’s motions for
    leave to file an appendix, reconsideration of the denial of his motion to file an
    amended appellate brief, in camera review of evidence, and suspension of the
    rules are DENIED.
    2
    

Document Info

Docket Number: 16-20442

Filed Date: 6/12/2018

Precedential Status: Non-Precedential

Modified Date: 6/12/2018