Robichaux v. Cain

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 14, 2005

Charles R. Fulbruge III
Clerk
No. 05-30136
Summary Calendar

BARTHOLOMESS ROBICHAUX,

Petitioner-Appellant,

versus

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent-Appellee.

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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CV-1945
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Bartholomess Robichaux, Louisiana prisoner # 91571, requests

a Certificate of Appealability (COA) to appeal the district court’s

dismissal of his 28 U.S.C. § 2254 petition as time-barred.

Robichaux argues that his 28 U.S.C. § 2254 petition was timely

because he timely mailed his writ application to the Louisiana

Supreme Court while incarcerated at Orleans Parish Prison in March

2001.

*
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this opinion should not be published and is not precedent except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. 05-30136
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To obtain a COA, Robichaux must make a substantial showing of

the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).

When, as here, a district court dismisses a habeas petition on

procedural grounds without reaching the underlying constitutional

claims, a COA may not issue unless the prisoner shows 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,

529 U.S. 473, 484 (2000).

Robichaux has shown that reasonable jurists would debate

whether the district court’s procedural ruling was correct and has

also shown that his petition states a claim for the denial of a

constitutional right. See id. Accordingly, a COA is hereby

GRANTED.

Rule X § 5(a) of the Louisiana Supreme Court Rules provides

that a petition for review of a decision of a court of appeal must

be filed within 30 days of the mailing of the notice of the

original judgment of the court of appeal. Rule X § 5(d) provides

that an application for a writ is deemed timely if mailed before

the filing deadline. Thus the very language of the rule itself

defines filing as timely mailing, and no resort to a mailbox rule

is required. Documents submitted by Robichaux on appeal as well as

filings of record and the subsequent treatment of his writ on

direct appeal in the state courts indicate that his writ
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application was timely filed. See Grillette v. Warden, 372 F.3d

765, 775 (5th Cir. 2004); State v. Sosa, 888 So. 2d 192 (La. 2004).

The district court’s judgment denying Robichaux’s 28 U.S.C.

§ 2254 petition as time-barred is hereby VACATED, and this case is

REMANDED to the district court for consideration of the

constitutional claims set forth in Robichaux’s 28 U.S.C. § 2254

petition.

GRANT COA; VACATE and REMAND.