     Case: 15-51036      Document: 00513877260         Page: 1    Date Filed: 02/15/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      No. 15-51036                              FILED
                                                                         February 15, 2017
                                                                           Lyle W. Cayce
JAMES ERIC LOFTEN,                                                              Clerk

                                                 Petitioner-Appellant

v.

COURT OF CRIMINAL APPEALS OF TEXAS – AUSTIN; LIBERTY
COUNTY JUDICIARY; STATE OF TEXAS,

                                                 Respondents-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:15-CV-776


Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Joseph Eric Loften, Texas prisoner # 616132, seeks a certificate of
appealability (COA) to challenge the district court’s dismissal for lack of
jurisdiction of his 28 U.S.C. § 2254 habeas petition based on it being a
successive application barred by earlier sanction orders in other proceedings.
Loften asserts that he is challenging for the first time his November 2013
conviction for possession of a controlled substance with intent to deliver and
his 99-year term of imprisonment.

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-51036    Document: 00513877260        Page: 2   Date Filed: 02/15/2017



                                    No. 15-51036
      Reasonable jurists would debate whether the district court erred in
dismissing Loften’s habeas petition as successive and subject to the prior
sanctions imposed against Loften in earlier proceedings challenging a different
conviction or a finding of guilt in a disciplinary proceeding. Additionally, “the
district court pleadings, the record, and the COA application demonstrate that
reasonable jurists could debate whether the petitioner has made a valid claim
of a constitutional deprivation.” Houser v. Dretke, 395 F.3d 560, 562 (5th Cir.
2004).
      Accordingly, IT IS ORDERED that Loften’s motion for a COA is
GRANTED; his motion for leave to proceed in forma pauperis is GRANTED;
the district court’s judgment dismissing his § 2254 habeas petition as
successive and barred by sanctions is VACATED; and the matter is
REMANDED for further proceedings. See Whitehead v. Johnson, 157 F.3d 384,
387-88 (5th Cir. 1998). Loften’s motion for appointment of counsel is DENIED.
See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). His motion for
an evidentiary hearing and for the issuance of a subpoena duces tecum and
subpoenas for out-of-state witnesses is DENIED without prejudice to his filing
the motion in the district court.




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