United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 11, 2004
Charles R. Fulbruge III
Clerk
No. 03-10858
USDC No. 2:03-CV-186
GERMAN RODRIGUEZ,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
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Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
German Rodriguez, Texas prisoner # 748574, seeks a
certificate of appealability (“COA”) to appeal the district
court’s dismissal of his 28 U.S.C. § 2254 petition for failure
to pay the required filing fee. To obtain a COA, Rodriguez must
make a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2). When the district court has
denied relief on procedural grounds without reaching the
underlying constitutional issue, a COA should be granted if the
petitioner shows that jurists of reason would find it debatable
*
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that this opinion should not be published and is not precedent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. 03-10858
-2-
whether the petition stated a valid claim of the denial of a
constitutional right and whether the district court was correct
in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484
(2000).
Rodriguez contends that COA should be granted and his case
reinstated because he complied with the magistrate judge’s report
requiring him to provide proof that he timely requested the
disbursement of funds for the filing fee. He urges that the
failure to pay the required fee was not attributable to him but
was caused by prison officials’ unexplained delay in processing
his request.
The record supports Rodriguez’s assertion that he timely
requested payment of the filing fee and that he submitted
documentation evidencing such request to the district court
during the time prescribed by the magistrate judge.** Rodriguez
has made a colorable showing that reasonable jurists would find
it debatable whether the district court erred in dismissing his
petition for failure to pay the required filing fee. Rodriguez
also has at least facially stated a claim under the Due Process
Clause. Accordingly, COA is GRANTED, the district court’s
judgment is VACATED, and the case is REMANDED for further
proceedings. See Slack, 529 U.S. at 484.
**
In any event, it is clear that Rodriguez qualifies for
pauper status now, and he is proceeding IFP in this appeal.