                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                        June 11, 2007

                                                                Charles R. Fulbruge III
                               No. 06-60264                             Clerk
                             Summary Calendar




HERMAN SAUNDERS,

                                         Petitioner-Appellant,

versus

EMMITT L. SPARKMAN,

                                         Respondent-Appellee.




                        --------------------
            Appeal from the United States District Court
              for the Southern District of Mississippi
                           No. 2-02-CV-558
                        --------------------




Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Herman Saunders, a Mississippi state prisoner, seeks a cer-

tificate of appealability (“COA”) to appeal the denial of his

28 U.S.C. § 2254 petition in which he sought to challenge his con-

viction on two counts of capital murder, for which he received two

life sentences. Saunders argues that the district court abused its


     *
        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opinion should not be published and is not precedent except under the limited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. 06-60264
                                        -2-

discretion in refusing to apply equitable tolling of the one-year

statute   of    limitations   to    his   newly     exhausted   claims.   See

28 U.S.C. § 2244(d).     As to the claims denied on the merits, Saun-

ders argues that (1) the evidence was insufficient to support his

conviction for the murder of Natasha Cole, and the jury instruc-

tions were erroneous; (2) the admission of extraneous offense evi-

dence was improper; and (3) the calling of a witness expected to

invoke the Fifth Amendment privilege against self-incrimination was

improper.      Saunders has abandoned his remaining § 2254 claims ad-

dressed on the merits by the district court by failing to argue

those claims in his COA application.              See Hughes v. Johnson, 191

F.3d 607, 613 (5th Cir. 1999).

     A COA will be granted if the applicant makes “a substantial

showing of the denial of a constitutional right.”                   28 U.S.C.

§ 2253(c)(2). To make this showing, the applicant must demonstrate

“that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.”                Slack v. Mc-

Daniel, 529 U.S. 473, 484 (2000). When the district court’s denial

of federal habeas relief is based on procedural grounds without

analysis of the underlying constitutional claims, “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.”       Id.
                             No. 06-60264
                                  -3-

     Saunders has failed to make the requisite showing as to his

argument that the district court abused its discretion in refusing

to applying equitable tolling to his newly exhausted claims.     He

also has failed to make the required showing as to his claims that

the admission of extraneous offense evidence was improper and that

the calling of a witness expected to invoke the Fifth Amendment

privilege was improper.   As to these claims, IT IS ORDERED that a

COA is DENIED.

     In addressing the sufficiency of the evidence to support Saun-

ders’s capital murder conviction for the murder of Cole, the dis-

trict court held that “[t]he evidence in this case, particularly

the testimony of Carlos Stewart, one of Saunders’ hired killers,

satisfies this standard.” The court did not identify the essential

elements of the offense under state law, or set forth the nature of

Stewart’s testimony upon which it relied, or explain how, in light

of Stewart’s testimony, any rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt.

See Isham v. Collins, 905 F.2d 67, 69 (5th Cir. 1990) (observing

that the Jackson v. Virginia, 443 U.S. 307, 319 (1979), standard is

applied with reference to the substantive elements of the crime as

defined by state law).    The appellate record, although containing

brief portions of the trial transcript, does not contain a complete

trial transcript, and the district court apparently addressed the

sufficiency of the evidence without the benefit of such a tran-

script.   See Magouirk v. Phillips, 144 F.3d 348, 362-63 (5th Cir.
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                                  -4-

1998) (observing that the court was “at a loss to understand how a

federal habeas court can conduct a meaningful sufficiency review

without a transcript of the trial”).        Morever, the court failed to

address Saunders’s challenge to the jury instructions, which he

raised in the context of his sufficiency challenge, and the com-

plete jury instructions are not part of the appellate record.       See

Thacker v. Dretke, 396 F.3d 607, 615 (5th Cir. 2005) (stating that

generally, a single jury instruction may not be judged in arti-

ficial isolation but must be viewed in the context of the overall

charge).

       Because the court denied Saunders’s challenge to the suffi-

ciency of the evidence and to the jury instructions without an ade-

quate state record, IT IS ORDERED that a COA is hereby GRANTED IN

PART. Cf. Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004) (re-

manding for further proceedings in light of, inter alia, unclear or

incomplete materials).   IT IS FURTHER ORDERED that the judgment is

VACATED with respect to the denial of Saunders’s sufficiency-of-

the-evidence claim and challenge to the jury instructions, and this

case is REMANDED for further proceedings consistent with this opin-

ion.   See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998)

(stating that this court may grant COA, vacate judgment, and remand

without requiring further briefing in appropriate case).             On

remand, the district court is encouraged to order the respondent to

add to the record any portions of the state court papers, including

transcripts, that are necessary for the district court to conduct
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                                 -5-

a meaningful review of the issues on which COA has been granted.

If the records are not available, the court should consider whether

an evidentiary hearing should be conducted for the purpose of re-

ceiving evidence relevant to those claims.
