     Case: 09-11015     Document: 00511115428          Page: 1    Date Filed: 05/19/2010




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

                                                  FILED
                                                                            May 19, 2010
                                     No. 09-11015
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

BARRY EMMETT,

                                                   Petitioner–Appellant,

v.

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

                                                   Respondent–Appellee.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:09-CV-138


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Barry Emmett, Texas prisoner # 1383329, moves for a certificate of
appealability (COA) to appeal the denial of his 28 U.S.C. § 2554 application
challenging disciplinary procedure # 20090254355.                  He contends that his
disciplinary case and punishment were the result of retaliation and that a
retaliation against an inmate amounts to a separate due process violation; he
was denied due process and equal protection under the Fourteenth Amendment


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-11015    Document: 00511115428 Page: 2        Date Filed: 05/19/2010
                                 No. 09-11015

because other inmates would have received less severe charges and punishment;
his due process and equal protection rights were violated by the hearing officer’s
refusal to recuse himself; and his due process and equal protection rights were
violated when a prison official denied his request for a different hearing officer.
      With regard to his procedural due process claims, Emmett has not shown
“that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” See Slack v. McDaniel, 529 U.S. 473,
484 (2000). Accordingly, a COA is denied on these claims.
      Emmett’s habeas application also alleged that his disciplinary hearing and
punishment were the result of retaliation against him for his filing of grievances
and the exercise of his right of access to the courts, and that he was punished in
violation of his equal protection rights.    The district court did not address
whether his allegations concerning retaliation and equal protection stated a
potentially cognizable claim under 42 U.S.C. § 1983, such that Emmett should
have been afforded an opportunity to further develop such claims. See Eason v.
Thaler, 14 F.3d 8, 9 (5th Cir. 1994); Serio v. Members of La. State Bd. of
Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987) (“[I]n instances in which a petition
combines claims that should be asserted in habeas with claims that properly
may be pursued as an initial matter under § 1983, and the claims can be
separated, federal courts should do so, entertaining the § 1983 claims.”); United
States v. Santora, 711 F.2d 41, 42 n.1 (5th Cir. 1983) (recognizing that review of
the merits of pro se prisoners’ claims are controlled by the essence of pleading
rather than the label attached). We therefore DENY the motion for a COA in
part, GRANT the motion for a COA in part, VACATE the district court’s
judgment, and REMAND for the district court to consider only whether Emmett
has alleged retaliation and equal protection claims that should be considered
under § 1983. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).




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