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

                                                                            FILED
                                                                          August 13, 2010
                              No. 09-41290 c/w 09-41293
                                 Summary Calendar                          Lyle W. Cayce
                                                                                Clerk

LYNN LEWIS FUNK,

                                                  Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee


                   Appeals from the United States District Court
                         for the Eastern District of Texas
                          USDC No. 4:09-CV-510 USDC
                                 No. 4:09-CV-543


Before KING, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Lynn Lewis Funk, Texas prisoner # 1275560, moves this court for a
certificate of appealability (COA) to appeal the dismissals of his § 28 U.S.C.
§ 2254 applications as time barred. Funk sought to challenge his conviction in
Cause No. F-2004-0307-C of two counts of indecency with a child and two counts
of sexual assault and his conviction in Cause No. F-2004-0308-C of three counts



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                           No. 09-41290 c/w 09-41293

of indecency with a child. He has also filed motions for leave to proceed in forma
pauperis (IFP) on appeal, to use the original record IFP, and to expedite
consideration of his motion for a COA.
      Funk argues that the limitations period should be statutorily tolled from
the date his conviction became final until September 2008, thereby making his
§ 2254 applications timely. He also argues that his applications should be
deemed timely based upon equitable tolling and actual innocence.               The
remainder of his brief is dedicated to arguments on the merits of his
constitutional claims and arguments regarding procedural errors in the state
habeas proceedings.
      To obtain a COA, Funk must make a substantial showing of the denial of
a constitutional right. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). When the district court’s denial of federal habeas relief is based
on procedural grounds, as here, “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
      Funk has not made the required showing on his equitable tolling and
actual innocence claims. Accordingly, a COA is denied on these issues. See
Slack, 529 U.S. at 484.
      In Egerton v. Cockrell, 334 F.3d 433, 436-39 (5th Cir. 2003), this court
considered whether denial of access to legal materials can constitute a
state-created impediment pursuant to 28 U.S.C. § 2244(b)(2)(B). Egerton was
denied access to a copy of § 2244(d)(1) for over two years because he was first
housed in a unit that did not have library privileges and then was transferred
to a unit that had inadequate library facilities. Id. at 435. This court concluded
that the State’s failure to provide “materials necessary to prisoners to challenge
their convictions or confinement, in this case a copy of the very statute that is

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being used to render Egerton’s petition time-barred, constitutes an ‘impediment’
for purposes of invoking § 2244(d)(1)(B).” Id. at 438-39. Whether a prisoner has
demonstrated the existence of a state-created impediment is highly fact
dependent. See id. at 438.
      In verified objections to the magistrate judges’s reports, Funk detailed his
numerous housing assignments and asserted that, as a result of the
inadequacies in the various prison libraries where he was housed, he was
prevented from accessing the AEDPA until September 2008. The district courts
overruled Funk’s objections without making factual findings regarding the
existence of a state-created impediment. Without factual findings regarding the
materials available to Funk for challenging his conviction, this court cannot
conclusively determine that Funk was not prevented from filing his § 2254
applications by the existence of a state-created impediment. See Thames v.
Wilson, 179 F. App’x 241, 242-43 (5th Cir. 2006); see also Fuller v. Johnson, 114
F.3d 491, 495 (5th Cir. 1997).
      In light of the foregoing, Funk has made a showing that the correctness of
the district court’s procedural ruling concerning the existence of a state-created
impediment is debatable. See Slack, 529 U.S. at 484. Because the procedural
ruling is debatable, a COA should be granted if reasonable jurists could debate
whether the district court pleadings, the record, and the COA motion contain a
valid constitutional claim, or if those materials are unclear or incomplete.
Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).
      The district courts dismissed Funk’s § 2254 applications as time barred
sua sponte, prior to service on the State, and without the benefit of a complete
state court record. We express no opinion on the validity of Funk’s ineffective
assistance of counsel claims; the record is incomplete. Accordingly a COA is
granted solely on the issue whether the statute of limitations was tolled due to
a state-created impediment. The case is vacated and remanded for the district



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courts to make findings whether a state-created impediment prevented Funk
from timely filing his § 2254 applications. See Houser, 395 F.3d at 562.
      Funk’s motion for leave to proceed IFP on appeal is granted. His motions
to use the original record IFP, and for expedited consideration of his motion for
a COA are denied.
      COA GRANTED in part; COA DENIED in part; IFP GRANTED;
VACATED and REMANDED; REMAINING MOTIONS DENIED.




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