     Case: 11-30997     Document: 00511828022         Page: 1     Date Filed: 04/19/2012




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

                                                                            FILED
                                                                           April 19, 2012
                                     No. 11-30997
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

STANLEY LINDSEY,

                                                  Plaintiff-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:11-CV-59


Before STEWART, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Stanley Lindsey, Louisiana prisoner # 90359, moves this court for a
certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2254
application, wherein he sought to challenge his conviction for armed robbery and
the life sentence imposed following his adjudication as an habitual offender.
Lindsey argues that the trial court erred when it determined that his claims
regarding the sufficiency of the evidence, the prosecutor’s improper remarks
during closing arguments, counsel’s failure to appeal the denial of the motion to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30997   Document: 00511828022      Page: 2   Date Filed: 04/19/2012

                                  No. 11-30997

suppress, counsel’s failure to object to the prosecutor’s improper remarks during
closing arguments, and the constitutionality of the habitual offender
adjudication were all procedurally barred. He also argues that the district court
erred by determining that his remaining ineffective assistance of counsel claims
and his claim regarding the State’s withholding of exculpatory evidence were
without merit.
      To obtain a COA, a prisoner must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529
U.S. 473, 483-84 (2000). When the district court has denied federal habeas relief
on procedural grounds, the applicant must demonstrate that reasonable jurists
would find it debatable whether the § 2254 application states a valid claim of the
denial of a constitutional right and whether the district court was correct in its
procedural ruling. Slack, 529 U.S. at 484. An applicant satisfies the COA
standard “by demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Lindsey has not made
the requisite showing regarding his procedurally defaulted claims concerning the
sufficiency of the evidence, the prosecutor’s improper remarks during closing
arguments, and the constitutionality of the habitual offender adjudication.
Likewise he has not made the requisite showing on the merits of his ineffective
assistance of counsel claims, and his claim regarding the State’s withholding of
exculpatory evidence. Consequently, his motion for a COA is denied as to those
claims.
      The Supreme Court recently addressed the standard for overcoming
procedurally defaulted ineffective assistance of counsel claims. See Martinez v.
Ryan, 2012 WL 912950 (2012). When a state, like Louisiana, requires that a
prisoner raise an ineffective assistance of counsel claim on collateral review, a
prisoner can demonstrate cause for the default in two circumstances: (1) “where

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                                  No. 11-30997

the state courts did not appoint counsel in the initial-review collateral
proceeding for a claim of ineffective assistance at trial” and (2) “where appointed
counsel in the initial-review collateral proceeding, where the claim should have
been raised, was ineffective under the standards of Strickland [v. Washington,
466 U.S. 668 (1984)].” Id. at *8 (citation omitted). Further, the prisoner must
also show that “the underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must demonstrate that the
claim has some merit.      Cf. Miller-El v. Cockrell (describing standards for
certificates of appealability to issue).” Id. (internal citations omitted).
      Accordingly, a COA is granted on the dismissal of Lindsey’s ineffective
assistance of counsel claims that were procedurally defaulted; the judgment is
vacated as to those claims; and the matter remanded for further proceedings in
light of Martinez. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).
      COA DENIED in part; COA GRANTED in part and VACATED and
REMANDED.




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