IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30771
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DWAYNE MARSHALL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 98-CV-906
USDC No. 92-CR-214-F
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August 19, 1999
Before DAVIS, EMILIO M. GARZA, and, DENNIS, Circuit Judges
PER CURIAM:*
Dwayne Marshall, federal prisoner # 22998-034, has appealed
the district court’s dismissal of his 28 U.S.C. § 2255 motion to
vacate. The district court held that the action was barred by the
one-year statute of limitations set forth in § 2255, without
reaching the merits of Marshall’s substantive claims. However, the
court granted a certificate of appealability (COA) only on his
claim that the Government had failed to reveal evidence favorable
to the defense.
*
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that this opinion should not be published and is not precedent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. 98-30771
-2-
Marshall has briefed the issues but he has not requested a COA
from this court on the limitations issue. “In order to obtain
appellate review of the issues the district court refused to
certify, [Marshall] must first make the threshold substantial
showing of the denial of a constitutional right. Only after
clearing this hurdle may [he] proceed to brief and we review the
merits of the rejected issues.” United States v. Kimler, 150 F.3d
429, 431 n.1 (5th Cir. 1998) (citation omitted).
When the threshold issue in a § 2255 appeal is not of
constitutional dimension, such as the limitations issue in this
case, the petitioner must make a credible showing that the district
court erred in dismissing the petition on that ground. See Davis
v. Johnson, 158 F.3d 806, 809 (5th Cir. 1998), cert. denied, 119 S.
Ct. 1474 (1999); United States v. Carter, 117 F.3d 262, 264 n.1
(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.” Sonnier v. Johnson, 161 F.3d 941, 943-44 (5th Cir. 1998).
It is not clear whether the district court intended to grant
a COA on the threshold limitations issue. Accordingly, the cause
will be REMANDED so that the district court may clarify its COA
order. In the event that the district court denies a COA on the
limitations issue, Marshall may request such a COA from this court.
See Kimler, 150 F.3d at 431 n.1.
REMANDED.