     Case: 17-20200      Document: 00514234856         Page: 1    Date Filed: 11/13/2017




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


                                      No. 17-20200
                                                                                     FILED
                                                                             November 13, 2017
                                                                                Lyle W. Cayce
STEVEN KURT BAUGHMAN,                                                                Clerk

                                                 Petitioner-Appellant

v.

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

                                                 Respondents-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-3191


Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Steven Kurt Baughman, SPN # 00505318, was convicted in Texas state
court of two counts of attempted capital murder of a peace officer. He now
seeks a certificate of appealability (COA) to appeal the district court’s dismissal
of his 28 U.S.C. § 2254 petition as time barred and denial of his Rule 59(e)
motion to alter or amend that dismissal. The district court denied a COA when




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-20200    Document: 00514234856     Page: 2   Date Filed: 11/13/2017


                                 No. 17-20200

it dismissed Baughman’s § 2254 petition, but it did not rule on a COA in
connection with its denial of the Rule 59(e) motion.
      This court may issue a COA only if Baughman has “made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because
the district court denied relief on procedural grounds, this court will grant a
COA only if reasonable jurists would debate whether the district court’s
procedural ruling is correct and whether Baughman states a valid claim of a
constitutional deprivation. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
      According to Baughman, the district court erred in dismissing his § 2254
petition as untimely without considering his arguments for timeliness that he
submitted in compliance with the court’s directives.       After reviewing his
arguments, we conclude, however, that Baughman has not met the requisite
COA standard as to the dismissal of his 28 U.S.C. § 2254 petition. See Slack,
529 U.S. at 484. Accordingly, his motion for a COA with respect to dismissal
of his § 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 the issue. See Cardenas
v. Thaler, 651 F.3d 442, 443-44 (5th Cir. 2011); 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). Accordingly, we DISMISS this matter in part for lack
of jurisdiction to rule on Baughman’s COA motion with respect to denial of his
Rule 59(e) motion because remand would be futile.
      COA DENIED IN PART AND DISMISSED IN PART.



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