     Case: 16-20586      Document: 00514072772         Page: 1    Date Filed: 07/14/2017




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

                                      No. 16-20586                                    FILED
                                                                                  July 14, 2017
                                                                                 Lyle W. Cayce
XAVIER A. AUSTIN,                                                                     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 Southern District of Texas
                             USDC No. 4:15-CV-3424


Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Xavier A. Austin, Texas inmate # 1812666, was convicted of capital
murder by a jury and sentenced to life in prison without the possibility of
parole. See Austin v. State, No. 14-12-894-CR, 2014 WL 3555703, at *1-2 (Tex.
Crim. App. July 17, 2014). He now seeks a certificate of appealability (COA)
to appeal the district court’s dismissal of his amended 28 U.S.C. § 2254 petition
as time barred and denial of his Rule 59(e) motion for reconsideration of that
dismissal. The district court denied a COA when it dismissed Austin’s § 2254

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20586

petition, but it did not rule on a COA in connection with denying the Rule 59(e)
motion.
      To obtain a COA, a § 2254 petitioner must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). Where, as here, the district court’s denial
of federal habeas relief is based on procedural grounds, this court will issue a
COA “when the prisoner shows, at least, 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).
      Austin has failed to show that reasonable jurists would find that the
district court erred in declining to apply either statutory or equitable tolling
with respect to his amended § 2254 petition; his original, timely § 2254 petition
was filed under the same conditions. See Slack, 529 U.S. at 484. Accordingly,
his motion for a COA with respect to dismissal of his amended § 2254 petition
is DENIED.
      A COA is required to appeal the denial of a Rule 59(e) motion in a habeas
case. See Ochoa Canales v. Quarterman, 507 F.3d 884, 887-88 (5th Cir. 2007).
Because of the lack of a COA ruling by the district court on this issue, we may
assume without deciding that we lack jurisdiction over this issue.            See
Rule 11(a), RULES GOVERNING § 2254 CASES. However, we will decline to
remand in order for the district court to make the COA determination in the
first instance if remand would be futile and a waste of judicial resources. See
United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). Because Austin
has failed to brief any separate error in connection with denial of his Rule 59(e)
motion, he has waived that issue. See Hughes v. Johnson, 191 F.3d 607, 612-



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                                No. 16-20586

13 (5th Cir. 1999). Accordingly, we DISMISS this matter in part for lack of
jurisdiction to rule on Austin’s COA motion with respect to denial of his Rule
59(e) motion because remand would be futile. See Alvarez, 210 F.3d at 310.
      COA DENIED IN PART AND DISMISSED IN PART.




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