IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60585
Summary Calendar
RICHARD D. STAFFORD,
Petitioner-Appellant,
versus
EMMITT L. SPARKMAN, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:00-CV-209-D
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December 19, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Richard D. Stafford, a Mississippi prisoner (# R0135), seeks
a certificate of appealability (“COA”) to appeal the district
court’s dismissal of his 28 U.S.C. § 2254 habeas petition. 28
U.S.C. § 2253(c)(1). This court may grant a COA “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). In order to
obtain a COA on a nonconstitutional issue, like the procedural-
default doctrine, a habeas applicant must also show that jurists
of reason would find it debatable whether the district court was
*
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this opinion should not be published and is not precedent except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.
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No. 01-60585
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correct in its procedural ruling. Slack v. McDaniel, 529 U.S.
473, 484 (2000).
Stafford argues that the district court erred in rejecting
his claims that: (1) counsel performed ineffectively by
(a) failing to investigate and to interview and call potential
alibi witnesses and (b) failing to argue a motion for continuance
to based on the prosecution’s failure to reveal the name of a
confidential informant (“CI”); (2) the trial court erred in
admitting an allegedly unreliable tape recording of the alleged
drug transactions; and (3) the court erred in admitting hearsay
testimony regarding one of Stafford’s witnesses.
The district court concluded that Stafford’s claims
regarding the admission of evidence were procedurally defaulted,
based on the Mississippi Supreme Court’s that such postconviction
claims were procedurally barred, apparently by Stafford’s failure
to raise them on direct appeal. Stafford has not established
that jurists of reason would find the procedural-default ruling
debatable. See Slack, 529 U.S. at 484. Moreover, he has not
made a substantial showing of the denial of a constitutional
right with respect to his claim that counsel performed
ineffectively by failing to argue the continuance motion.
Accordingly, a COA is DENIED as to these claims.
With respect to Stafford’s claims regarding counsel’s
failure to interview and call witnesses, a COA is GRANTED. In
addressing this claim, the magistrate judge’s report recommended
that these claims be denied because they were “unsupported by
affidavits or notations in the record,” despite the three
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notarized affidavits submitted by Stafford in connection with
this claim. The district court adopted the report and
recommendation as its opinion. Any doubt about the granting of a
COA is resolved in favor of the applicant. Fuller v. Johnson,
114 F.3d 491, 495 (5th Cir. 1997). Because resolution of the
ineffectiveness claim regarding uncalled witnesses is largely
fact-intensive, the judgment as to this claim is VACATED and this
case is REMANDED for further proceedings consistent with this
opinion.
Stafford’s motion to proceed in forma pauperis on appeal is
GRANTED.
COA DENIED IN PART AND GRANTED IN PART; IFP GRANTED; VACATED
AND REMANDED.