IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20669
Summary Calendar
JOHNNY DWAYNE STATEN,
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-99-CV-879
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November 2, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Texas prisoner Johnny Dwayne Staten, #682286, moves this
court for a certificate of appealability (COA) to appeal the
dismissal, without prejudice, of his 28 U.S.C. § 2254 petition.
The magistrate judge dismissed Staten’s instant § 2254 petition
“as improvidently filed under the Fifth Circuit’s sanction and
bar order” in Staten v. Pruitt, No. 97-10396 (5th Cir. Apr. 15,
1998)(unpublished).
*
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that this opinion should not be published and is not precedent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. 00-20669
- 2 -
When the district court denies federal habeas relief on
procedural grounds and does not reach the underlying
constitutional claim, “a COA should issue [if] the prisoner
shows, at least, 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, 120 S. Ct. 1595, 1604
(2000).
In In re: Staten, No. 99-00034 (5th Cir. Jun. 2, 1999)
(unpublished), this court determined that the prior sanction
order relied upon by the magistrate judge to dismiss the instant
action did not bar Staten from filing a notice of appeal in a
§ 2254 proceeding. Accordingly, Staten’s motion for a COA is
GRANTED; Staten’s motion for leave to proceed in forma pauperis
on appeal is GRANTED; and the case is VACATED and REMANDED for
further proceedings. All other remaining motions and all other
requests for relief are DENIED.