     Case: 09-30543     Document: 00511021740          Page: 1    Date Filed: 02/05/2010




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

                                                  FILED
                                                                          February 5, 2010
                                     No. 09-30543
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

WARREN SCOTT, III,

                                                   Petitioner-Appellant

v.

CORNEL H. HUBERT,

                                                   Respondent-Appellee


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:08-CV-11


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Warren Scott, III, Louisiana prisoner # 463618, filed a 28 U.S.C. § 2254
petition. Scott challenged two convictions for unauthorized entry of an inhabited
building, one for aggravated burglary, and one for sexual battery. The district
court found Scott’s petition untimely to the extent that it challenged the
unauthorized entries and the aggravated burglary. The district court found
Scott’s ineffective assistance of counsel claims challenging the sexual battery
conviction unexhausted and procedurally barred from federal habeas review.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30543

Scott – now represented by counsel – seeks a certificate of appealability (COA)
to appeal the district court’s dismissal of his petition.
       Scott has not shown that reasonable jurists would find debatable or
incorrect the district court’s untimeliness ruling regarding his unauthorized
entry convictions.1 Scott’s motion for a COA is denied with respect to those
claims.
       On the other hand, Scott argues that – due to a resentencing – his federal
petition was timely regarding his conviction for aggravated burglary. We hold
that reasonable jurists would find the district court’s timeliness determination
here to be debatable or incorrect. The debate would focus on whether the district
court erred in calculating the date on which the aggravated burglary judgment
“became final” for the purposes of 28 U.S.C. § 2244(d).
       The Supreme Court has explained that “[f]inal judgment in a criminal case
means sentence. The sentence is the judgment.” 2 The record indicates that
Scott’s sentence for the aggravated burglary did not become final until May
2005, but the district court found that the limitations period began to run in
March 2004 – when the conviction became final. Scott thus raises a debatable
procedural question. Because he also raises several substantive constitutional
issues (including involuntariness of guilty plea) underlying his aggravated
burglary conviction and sentence, he has made the necessary showing to obtain
a COA.3


       1
           See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
       2
           Burton v. Stewart, 549 U.S. 147, 156 (2007) (citation and quotation marks omitted).
       3
        See Slack, 529 U.S. at 484 (“When the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA
should issue 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.”); Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004) (“Assume that petitioner has
stated a ‘debatable’ issue concerning the correctness of the district court’s procedural denial
of habeas relief. Then, if the district court pleadings, the record, and the COA application

                                                2
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                                      No. 09-30543

       Scott further argues that the district court erred in finding his ineffective
assistance of counsel claims procedurally defaulted in his sexual battery case.
The district court ruled that Scott had not raised the claims in state court. Here
again reasonable jurists might debate or disagree, insofar as Scott’s ineffective
assistance claim relates to the all-white composition of his jury.
       “To exhaust available state court remedies, a habeas petitioner must fairly
present all the claims in his habeas corpus petition to the highest available state
court, alerting the court to the federal nature of his claim. A prisoner fairly
presents a claim to the state court when he . . . alleges a pattern of facts that is
well within the mainstream of constitutional litigation.” 4 Scott may have done
so here, handwriting in his application for state post-conviction relief – under
the heading “Ineffective Assistance of Counsel” – “On February 12, 2003, my
rights to a jury trial of my peers was violated. And I was wrongfully convicted
due to same prior ineffective assistance of counsel Sherman Ruth that was ill
prepared for my jury trial and inexperienced. And due to an all white jury
selection.” Reasonable jurists could debate whether Scott fairly presented in
state court an argument that a failure to object to the jury composition on
Batson 5 grounds contributed to his lawyer’s ineffectiveness.
       To sum up, we GRANT Scott a COA on two issues: (1) whether Scott
timely filed his federal petition regarding his aggravated burglary judgment; and
(2) whether in his sexual battery case Scott procedurally defaulted his ineffective
assistance claim relating to Batson.
       COA GRANTED IN PART, DENIED IN PART.




demonstrate that reasonable jurists could debate whether the petitioner has made a valid
claim of a constitutional deprivation, a COA will issue.”).
       4
       Kittelson v. Dretke, 426 F.3d 306, 315 (5th Cir. 2005) (citations and quotation marks
omitted).
       5
           Batson v. Kentucky, 476 U.S. 79 (1986).

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