     Case: 12-31039       Document: 00512190756         Page: 1     Date Filed: 03/28/2013




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

                                                                            FILED
                                                                          March 28, 2013
                                     No. 12-31039
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

KENTRELL HARRELL,

                                                  Petitioner–Appellant,

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                  Respondent–Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CV-989


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Kentrell Harrell, Louisiana prisoner # 467824, was convicted in 2006 of
second-degree murder and received a sentence of life in prison.                        After
unsuccessfully seeking direct and postconviction review in state court, Harrell
filed a 28 U.S.C. § 2254 application raising numerous claims. By order entered
on September 28, 2012, the district court dismissed the § 2254 application as
mixed because it contained both exhausted and unexhausted claims. Harrell
then filed a timely notice of appeal. Within 28 days of entry of judgment, Harrell

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-31039

filed a motion seeking to delete his unexhausted claims and to proceed solely on
his exhausted claim that the evidence was insufficient. The district court
granted that motion and ordered the case reopened.
      Harrell then moved in this court to dismiss his appeal. However, by order
entered on November 7, 2012 (the November 7 order), the district court vacated
its earlier order reopening the case on the basis that it lacked jurisdiction due
to Harrell’s pending appeal. As a result, no action was taken on Harrell’s
request to dismiss his appeal.
      Harrell now seeks a certificate of appealability (COA) from this court.
Harrell challenges the November 7 order and asks that he be permitted to
proceed on his exhausted claim. We treat Harrell’s COA application, filed within
30 days of entry of the November 7 order, as a timely notice of appeal of that
order. See Smith v. Barry, 502 U.S. 244, 247-48 (1992); FED. R. APP. P. 4(a)(1)(A).
      A COA may be issued “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When,
as in this case, a district court dismisses a habeas application on procedural
grounds, the movant 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
      Harrell has made the required showing. Because Harrell filed his motion
within 28 days of entry of judgment of dismissal, it was effectively a Rule 59(e)
motion, making the notice of appeal ineffective and the judgment nonfinal until
disposition of the motion. See FED. R. CIV. P. 59(e); FED. R. APP. P. 4(a)(4)(A),
(B)(i); Simmons v. Reliance Standard Life Ins. Co. of Tex., 310 F.3d 865, 867-68
(5th Cir. 2002). The district court thus had authority to reopen the matter and
erred by vacating its prior order reopening the case for lack of jurisdiction.
Harrell has necessarily shown that reasonable jurists would debate the
procedural ruling.

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                                  No. 12-31039

      Our review of the pleadings, record, and COA application satisfy us that
reasonable jurists would also debate whether Harrell has stated a valid
constitutional claim regarding the sufficiency of the evidence. See Houser v.
Dretke, 395 F.3d 560, 562 (5th Cir. 2004). Therefore, Harrell has satisfied the
requirements for a COA. See Slack, 529 U.S. at 484.
      In light of the foregoing, we GRANT Harrell’s motion for a COA with
respect to whether the district court erred by vacating the November 7 order and
whether he has stated a valid constitutional claim. As further briefing is
unnecessary, we VACATE the November 7 order, and we REMAND to the
district court to reenter the ruling reopening Harrell’s § 2254 proceedings so that
Harrell may pursue his exhausted sufficiency claim. See Whitehead v. Johnson,
157 F.3d 384, 388 (5th Cir. 1998) (per curiam). We express no opinion regarding
the resolution of the merits of Harrell’s application.




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