IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40493
Summary Calendar
THOMAS E. SIMMONS,
Petitioner-Appellant,
versus
JANIE COCKRELL, 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. C-00-CV-170
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March 7, 2003
Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Thomas E. Simmons, Texas prisoner #379918, appeals the
district court’s denial of his 28 U.S.C. § 2254 petition, in
which he challenged his disciplinary conviction for threatening
an officer. He argues that the district court erred in denying
his claim that the disciplinary charge was brought in retaliation
*
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that this opinion should not be published and is not precedent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. 02-40493
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for his having filed an Americans With Disabilities Act (“ADA”)
lawsuit against the prison.
The respondent’s challenges to this court’s jurisdiction are
without merit. The district court did not abuse its discretion
in granting Simmons’ motion to reopen because the conditions set
forth in FED. R. APP. P. 4(a)(6) were satisfied. See In re
Jones, 970 F.2d 36, 39 (5th Cir. 1992). Contrary to the
respondent’s contentions, notice to counsel of the entry of
judgment was insufficient under the circumstances of this case,
and Simmons himself was entitled to notice of the entry of
judgment as required by FED. R. APP. P. 4(a)(6)(B).
Although under 28 U.S.C. § 2253(c)(3), an order granting a
certificate of appealability (COA) must specify the issue or
issues on which the applicant has made a substantial showing of
the denial of a constitutional right, a limited exception to this
requirement “applies where the petitioner presented only one
issue to the district court.” See Muniz v. Johnson, 114 F.3d 43,
45 n.1 (5th Cir. 1997)(citing Else v. Johnson, 104 F.3d 82, 83
(5th cir. 1997)). As Simmons points out, the only claim to
survive summary judgment and on which the district court ordered
an evidentiary hearing was Simmons’ retaliation claim. In his
reply brief, Simmons states that he has waived “all claims but
the retaliation claim” and that the retaliation claim “is the
sole subject of the instant appeal.” Based on the foregoing,
this court declines to remand and construes the district court’s
No. 02-40493
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order granting COA as directed to Simmons’ retaliation claim.
See Muniz, 114 F.3d at 45 n.1; Else, 104 F.3d at 83.
Contrary to Simmons’ contentions, the testimony offered at
the evidentiary hearing does not support his retaliation claim,
but supports the district court’s dismissal of the claim. The
testimony established that there is no dispute that Simmons made
statements to Curtis; that those statements included references
to Nagle and suggested that other prison officers would face the
same fate as Nagle; and that Simmons made these statements two
weeks after Nagle was killed, when a zero tolerance policy for
such statements was in place at the prison. In light of the
foregoing, the magistrate judge’s and district court’s finding
that Simmons did not present evidence establishing a retaliation
claim, but “at most [Simmons] ha[d] shown that officials
overreacted to his comments” was not clearly erroneous. See
Clarke v. Stalder, 121 F.3d 222, 231-32 (5th Cir. 1997), vacated
on other grounds, 154 F.3d 186 (5th Cir. 1998)(en banc).
Although Simmons asserts that the disciplinary charge was
“false” based on Curtis’ testimony that she believed a lesser
offense would have been more appropriate, Curtis confirmed at the
evidentiary hearing that Simmons made the statement set forth in
her offense report. The district court previously concluded
that, based on the statement in the offense report, “some
evidence” supported Simmons’ conviction for threatening an
officer. See Superintendent, Mass. Correctional Inst., Walpole
No. 02-40493
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v. Hill, 472 U.S. 445, 455 (1985). Simmons does not challenge
this specific finding.
Although Simmons asserts numerous arguments in support of
his assertion that he presented a “chronology of events”
establishing a retaliation claim, he presents no sound basis for
disturbing the magistrate judge’s and district court’s findings
that the “chronology of events” he presented did not compel a
finding of retaliation. See Clarke, 121 F.3d at 232.
Based on the foregoing, the district court’s judgment
denying Simmons’ 28 U.S.C. § 2254 petition is AFFIRMED.