DIETRICH v. VANNOY (2020)

Brian Dietrich, Louisiana prisoner # 125055, was convicted by a jury of second degree murder and sentenced in 1988 to life imprisonment. He now moves for a certificate of appealability (COA) following the district court’s denial of his 28 U.S.C. § 2254 petition as procedurally defaulted.

To obtain a COA, a § 2254 petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district court’s denial of federal habeas relief is based on procedural grounds, this court will issue a COA “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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Dietrich fails to make the requisite showing for issuance of a COA with respect to the district court’s denial of his petition on procedural grounds. See Slack, 529 U.S. at 484, 120 S.Ct. 1595. His motion for a COA is therefore denied. To the extent that he requests a COA regarding the district court’s denial of an evidentiary hearing, we construe his motion as a direct appeal of that issue and affirm. See Norman v. Stephens, 817 F.3d 226, 234-35 (5th Cir. 2016).

COA DENIED; AFFIRMED.

FOOTNOTES

FOOTNOTE.  

PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.