Staten v. Johnson

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. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CV-879 -------------------- 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filed under the Fifth Circuit’s sanction and bar order” in Staten v. Pruitt, No. 97-10396 (5th Cir. Apr. 15, 1998)(unpublished).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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 In In re: Staten, No. 99-00034 (5th Cir. Jun. 2, 1999) (unpublished), this court determined that the prior sanction order relied upon by the magistrate judge to dismiss the instant action did not bar Staten from filing a notice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.