IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20930
Summary Calendar
ABDUL HAKEEM MUHAMMAD,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-1982
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December 16, 1998
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Abdul Hakeem Muhammad, Texas prisoner # 550712, requests
this court to grant him a certificate of appealability (COA) to
appeal from the district court’s denial of his 28 U.S.C. § 2254
habeas corpus petition. Muhammad alleged in his petition that
1) the district court erred in dismissing some of his claims as
procedurally barred; 2) that the evidence was insufficient to
*
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that this opinion should not be published and is not precedent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. 97-20930
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support his conviction for aggravated robbery; 3) he was required
to participate in an identification lineup without the assistance
of counsel; 4) the prosecution suppressed exculpatory evidence;
5) prosecutorial misconduct; 6) the identification procedures
were unduly suggestive; 7) that the trial court deprived him of a
fundamentally fair trial by denying his motion for severance;
8) that the state court did not have sufficient evidence of
probable cause to detain him for trial; and 9) that he was denied
the effective assistance of counsel.
A COA may be issued only if the prisoner has made a
substantial showing of the denial of a constitutional right. See
28 U.S.C. § 2253(c)(2). However, with respect to the applicant’s
challenges the district court’s dismissal for a reason not of
constitutional dimension —— here, application of the procedural
bar —— the petitioner must first make a credible showing that the
district court erred in its ruling on a procedural issue.
Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998). Only if
such a showing of error is made will the court also consider
whether the prisoner has made a substantial showing of the denial
of a constitutional right on the underlying claims. Id.
With the exception of Muhammad’s claim that the district
court erred in determining that federal review of his
sufficiency-of-the-evidence claim was procedurally barred,
Muhammad has failed to make a substantial showing of the denial
of a constitutional right with respect to his claims reviewed on
the merits or that the district court erred in dismissing other
claims based on the procedural bar.
No. 97-20930
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Muhammad’s request for COA is GRANTED on the issue that the
district court erred in determining that federal review of the
sufficiency of the evidence is precluded by the procedural bar.
Muhammad raised the sufficiency issue on direct appeal, and the
state court reviewed the merits of the claim. See Muhammad v.
Texas, 814 S.W.2d 137, 138-39 (Tex. Ct. App. 1991). Therefore,
Muhammad made a credible showing that the district court
committed a procedural error.
The district court’s ruling on the sufficiency issue is
VACATED and the case is REMANDED to the district court for review
on the merits and a determination whether COA should be granted
on this claim. See Whitehead, 157 F.3d at 388.