UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-60174
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGER O. DYESS,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(2:97-CV-163-PG)
_________________________________________________________________
March 22, 1999
Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Roger O. Dyess, federal prisoner # 03969-043, appeals the
denial of his FED. R. CRIM. P. 33 motion for a new trial. He also
seeks a certificate of appealability (COA) from the denial of his
28 U.S.C. § 2255 motion.
In his motion for a new trial, Dyess asserted that his trial
attorney was ineffective for failing to call certain witnesses and
for failing to expose allegedly perjured testimony by some of the
Government’s witnesses. He also asserted that Freddie Longino, the
*
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this opinion should not be published and is not precedent except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.
Government’s key witness, recanted his trial testimony, thereby
constituting newly discovered evidence justifying a new trial.
Pursuant to our review of the record and Dyess’ brief, we
AFFIRM the denial of his motion for new trial for the reasons
adopted by the district court. United States v. Dyess, No. 2:97-
CV-163-PG (S.D. Miss. March 10, 1998) (unpublished).
As for Dyess’ remaining claims, brought under § 2255, the
district court sua sponte dismissed the claims as barred by the
one-year statute of limitations set forth in 28 U.S.C. §
2244(d)(1). Dyess’ § 2255 motion was filed after the effective
date of the Antiterrorism and Effective Death Penalty Act;
therefore, he is required to obtain a COA to proceed on appeal from
the denial of his § 2255 motion. 28 U.S.C. § 2253(c)(1); Lindh v.
Murphy, 521 U.S. 320 (1997). To obtain a COA, Dyess must show that
the district court erred by denying his motion on nonconstitutional
grounds and must make a substantial showing of the denial of a
constitutional right. Davis v. Johnson, 158 F.3d 806, 809 (5th
Cir. 1998); Whitehead v. Johnson, 157 F.3d 384, 386 (5th Cir.
1998).
Dyess’ § 2255 motion was filed on 24 April 1997. Therefore,
contrary to the district court’s ruling, it was not time-barred.
See Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998).
Accordingly, COA is GRANTED; the judgment dismissing the § 2255
motion is VACATED; and the case is REMANDED for further proceedings
on the § 2255 motion.
COA GRANTED; AFFIRMED in part, VACATED in part, and REMANDED
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