USA vs. Marshall (5th Cir. 1999)

Federal Circuits, 5th Cir. (August 19, 1999)

Docket number: 98-30771

Permanent Link: http://vlex.com/vid/usa-vs-marshall-18389068
Id. vLex: VLEX-18389068

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U.S. Court of Appeals for the 5th Cir. - William Prince Davis, Petitioner-Appellant, v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee., 158 F.3d 806 (5th Cir. 1998)

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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-30771 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS DWAYNE MARSHALL, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 98-CV-906 USDC No. 92-CR-214-F August 19, 1999 Before DAVIS, EMILIO M. GARZA, and, DENNIS, Circuit Judges PER CURIAM: * Dwayne Marshall, federal prisoner # 22998 -034, has appealed the district co urt§ 2255 motion to vacate. The district court held that the action was barred by the one -year statute of limitations set forth in § 2255, without reaching the merits of MarshallÂ’s substantive claims. However, the court granted a certificate of appealability (COA) only on his claim that the Government had failed to reveal evidence favorable to the defense.

Marshall has briefed the issues but he has not requested a COA from this court on the limitations issue. § 2255 appeal is not of constitutional dimens ion, such as the limitations issue in this case, the petitioner must make a credible showing that the district court erred in dismissing the petition on that ground. See Davis v. Johnson , 158 F.3d 806, 809 (5th Cir. 1998), cert. denied , 119 S. Ct. 1474 (1999); United States v. Carter , 1 17 F.3d 262, 264 n.1 (5th Cir. 1998). Â“Only if such a showing of error is made will the court also consider whether the prisoner has made a su bstantial showing of the denial of a constitutional right on the underlying claims.Â” S onnier v. Johnson , 161 F.3d 941, 943-44 (5th Cir. 1998).

It is not clear whether the district court intended to grant a COA on the threshold limitations issue. Accordingly, the cause will be REMANDED so that the district court may cl arify its COA order. In the event that the district court denies a COA on the limitations issue, Marshall may request such a COA from this court.

See Kimler , 150 F.3d at 431 n.1. REMANDED.

No. 98-30771