     Case: 11-30728     Document: 00511831084         Page: 1     Date Filed: 04/23/2012




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

                                                                            FILED
                                                                           April 23, 2012
                                     No. 11-30728
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

LUCAS J. RODDY,

                                                  Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:10-CV-800


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Lucas J. Roddy, Louisiana prisoner # 458846, has applied for a certificate
of appealability (COA) to appeal the district court’s dismissal, on procedural
grounds, of claims raised in his 28 U.S.C. § 2254 petition. Roddy was convicted
by a jury of second degree murder and is serving a sentence of life imprisonment.
        A COA may be issued only if the applicant “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack
v. McDaniel, 529 U.S. 473, 484 (2000). “The COA determination under § 2253(c)

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30728    Document: 00511831084      Page: 2   Date Filed: 04/23/2012

                                  No. 11-30728

requires an overview of the claims in the habeas petition and a general
assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
When the district court’s denial of relief is based upon 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.” Slack, 529 U.S. at 484.
      Roddy does not challenge the district court’s dismissal, as unexhausted,
of his claim regarding the denial of DNA testing of clothing allegedly worn by the
perpetrator. Failure to identify an error in the district court’s analysis has the
same effect as not appealing a judgment. Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Accordingly, a COA is DENIED
as to the district court’s dismissal of Roddy’s claim regarding the denial of DNA
testing.
      Roddy argues that the district court erred in dismissing his remaining
claims as time barred. Specifically, he asserts that the district court erroneously
determined that his state post-conviction relief application ceased to be properly
filed because he did not timely file a writ application in the Louisiana Supreme
Court. Roddy points to a prison mail request form, supplemented into the record
by order of the magistrate judge, that purports to show that on November 10,
2009, he submitted for mailing a writ application to the Louisiana Supreme
Court. He asserts that his writ application was timely filed given operation of
the prison mailbox rule, see Stoot v. Cain, 570 F.3d 669, 671 (5th Cir. 2009), and
that therefore he was entitled to statutory tolling from the date that he filed his
application for state post-conviction relief until November 5, 2010, when the
Louisiana Supreme Court denied his writ application.              See 28 U.S.C.
§ 2244(d)(2). He maintains that his § 2254 petition, filed on November 22, 2010,
was not untimely.

                                        2
   Case: 11-30728   Document: 00511831084      Page: 3   Date Filed: 04/23/2012

                                  No. 11-30728

      Roddy has shown that jurists of reason would debate the correctness of the
district court’s procedural ruling. See Slack, 529 U.S. at 484. Roddy’s claims of
ineffective assistance of trial counsel, violations of Brady v. Maryland, 373 U.S.
83 (1963), denial of the right to testify, and prejudice resulting from the
cumulative effect of the alleged violations of his rights, are claims of
constitutional deprivations. We express no view on the resolution of the above
claims and observe only that Roddy’s has made a sufficient showing to warrant
the grant of a COA. See Gonzalez v. Thaler, 132 S. Ct. 641, 648-50 (2012);
Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004). Accordingly, a COA is
GRANTED as to the district court’s dismissal of these claims as time barred.
The district court must resolve the factual question of whether Roddy timely
placed his writ application in the prison mail system and further briefing on this
issue before this court would not be helpful; therefore, the case should be
remanded without further proceedings before this court at this time. See
Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998) (stating that, in
appropriate cases, this court may grant COA, vacate judgment, and remand
without requiring further briefing). IT IS FURTHER ORDERED that the
judgment is VACATED IN PART, and this case is REMANDED IN PART to the
district court for further proceedings consistent with this opinion.




                                        3
