     Case: 17-10093      Document: 00514269147         Page: 1    Date Filed: 12/12/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 17-10093                               FILED
                                                                         December 12, 2017

RONNIE LEE ALLEN,                                                           Lyle W. Cayce
                                                                                 Clerk
                                                 Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:15-CV-659


Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Ronnie Lee Allen, Texas prisoner # 01697664, was convicted of
aggravated robbery with a deadly weapon and sentenced to life imprisonment.
Allen moves for a certificate of appealability (COA) to appeal the district court’s
denial of his petition under 28 U.S.C. § 2254. He has also filed a motion to
proceed in forma pauperis (IFP) on appeal. Allen argues that the district court
erred in determining that his challenge to the admission of a handkerchief with


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-10093

his DNA into evidence was unexhausted and procedurally barred. He further
argues that the district court erred in denying his claims of ineffective
assistance of counsel. He does not address the district court’s analysis of his
challenge to the sufficiency of the evidence; therefore, he has waived the issue.
See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
      To obtain a COA, Allen must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court rejects
a constitutional claim on the merits, the COA standard requires that the
petitioner “demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.”            Slack v.
McDaniel, 529 U.S. 473, 484 (2000). When the district court denies a habeas
petition on procedural grounds without reaching the merits of the underlying
constitutional claim, the petitioner must show “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.” Id.
      The district court rejected Allen’s challenge to the admission into
evidence of a handkerchief with his DNA that was found at the scene of the
robbery because it had not been “presented to the [Texas Court of Criminal
Appeals], either through a petition for discretionary review or as a claim in his
state habeas application.” As Allen points out, though, he raised the claim in
his petition for discretionary review. The district court’s statement to the
contrary was error. Allen has therefore demonstrated that reasonable jurists
would debate whether the district court was correct in its procedural ruling.
See Slack, 529 U.S. at 484.
      A COA may still be denied, even where the district court’s procedural
ruling is debatable, if the petitioner’s substantive claim is meritless. Houser



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                                 No. 17-10093

v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004). The record before the court in this
case does not allow for a fair assessment of the merit of Allen’s claim regarding
the admission of the handkerchief; therefore, the grant of a COA as to the
exhaustion ruling is appropriate. See id.
      Allen has shown that the district court’s procedural ruling with respect
to the admission of the handkerchief into evidence is debatable. See Slack, 529
U.S. at 484. Because the record is inadequate to fairly assess the merits of
that claim, a COA is granted. See Houser, 395 F.3d at 562. A COA is denied
for Allen’s remaining claims. Further, the district court’s procedural ruling is
vacated, and the case is remanded to the district court for consideration of
Allen’s claim of the denial of a constitutional right with respect to the
admission of the handkerchief.     See id.   Allen’s motion to proceed IFP is
granted.
      COA GRANTED in part; COA DENIED in part; IFP GRANTED;
JUDGMENT VACATED in part and CASE REMANDED.




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