     Case: 16-40822      Document: 00514349469         Page: 1    Date Filed: 02/15/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 16-40822
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                       February 15, 2018
                                                                           Lyle W. Cayce
MARCUS FRANK KELLER,                                                            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 Eastern District of Texas
                             USDC No. 1:14-CV-180


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Marcus Frank Keller, Texas prisoner # 1473240, pleaded guilty in state
court to aggravated robbery. The trial court deferred adjudication of guilt and
placed Keller on community supervision. However, on the State’s motion, the
trial court subsequently revoked Keller’s community supervision, found him
guilty of aggravated robbery, and sentenced him to 77 years of confinement.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40822

      Keller attacked the state court’s adjudication in a 28 U.S.C. § 2254
petition, which the district court dismissed, without prejudice, for want of
prosecution under Federal Rule of Civil Procedure 41(b). This court granted a
certificate of appealability (COA) on the issue whether the § 2254 petition was
properly dismissed.
      As an initial matter, Keller’s pro se appellate brief focuses on several
claims for habeas relief and fails to address the district court’s procedural
dismissal of his petition or the issue on which COA was granted. We could
therefore, consider the relevant issue abandoned because it is not briefed. See
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). However, “[t]he issues-not-
briefed-are-waived rule is a prudential construct that requires the exercise of
discretion.” United States v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001). Here,
in his objections to the magistrate judge’s report, as well as in his COA brief to
this court, Keller questioned the dismissal of his § 2254 petition for failure to
prosecute. Furthermore, as discussed below, given that the district court’s
dismissal effectively operates as a dismissal with prejudice, it is clear from the
record that the district court erred in dismissing Keller’s § 2254 petition. In
view of the foregoing, we exercise our discretion to consider the propriety of the
district court’s dismissal. See id. at 443-44.
      A district court may sua sponte dismiss an action for failure to prosecute
or to comply with any order. FED. R. CIV. P. 41(b); McCullough v. Lynaugh,
835 F.2d 1126, 1127 (5th Cir. 1988). We review a district court’s sua sponte
dismissal under Rule 41(b) for an abuse of discretion. Coleman v. Sweetin, 745
F.3d 756, 766 (5th Cir. 2014).      A heightened standard of review applies,
however, where a district court’s dismissal is with prejudice or if it is without
prejudice and “the applicable statute of limitations probably bars further
litigation.” Gray v. Fidelity Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981);



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                                 No. 16-40822

see also Coleman, 745 F.3d at 766. “We review such dismissals as we would
dismissals with prejudice.” Coleman, 745 F.3d at 766. Here, because Keller’s
§ 2254 petition was pending in the district court for over two years prior to its
dismissal, further habeas litigation would probably be barred by the applicable
one-year limitations period imposed by 28 U.S.C. § 2244(d).
      A Rule 41(b) dismissal of an action with prejudice is a severe sanction,
to be used only when the conduct in question “has threatened the integrity of
the judicial process.” Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir. 1982).
Such a dismissal is improper unless the case history evidences both “(1) a clear
record of delay or contumacious conduct by the plaintiff, and (2) that a lesser
sanction would not better serve the best interests of justice.”          McNeal
v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988).
      While the district court determined that Keller’s failure to inform it of
his transfer to the Montford Unit warranted dismissal, the record does not
reflect that Keller had a history of purposeful delay or contumacious conduct.
See id. The record also does not reflect that the district court considered a
lesser sanction. See id.
      Accordingly, the judgment of the district court is VACATED, and the
case is REMANDED for further proceedings. We express no opinion on the
merits of Keller’s underlying habeas petition. Keller’s motions for a new trial
and to arrest the judgment are DENIED.




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