Pierce v. Dretke , 170 F. App'x 333 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 8, 2006
Charles R. Fulbruge III
Clerk
No. 04-20175
Summary Calendar
ROY JACKSON PIERCE,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-313
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
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.
*
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this opinion should not be published and is not precedent except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.
No. 04-20175
-2-
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 (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.