### IN THE UNITED STATES COURT OFAPPEALS FOR THE FIFTH CIRCUIT

No. 11-30728 Summary Calendar

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 , o n p rocedural 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

s howing of the denial of a constitutional right.” 28 U.S.C. § 2253(c) (2 ) ; S lack

v. McDaniel , 529 U.S. 473, 484 (2000). “The COA determination under § 2253(c) U n i te d S ta te s C o u rt o f Ap p ea l s

F i ft h C i rc u i t 

### F I L E D April 23 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop inion sho uld not * be publish ed and is not pr ece dent excep t unde r the lim ite d circum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. Case: 11-30728 Document: 00511831084 Page: 1 Date Filed: 04/23/2012No. 11-30728

requires an overview of the claims in the habeas petition and a general assessment of their merits.” M i l le r - El v. Cockrell , 537 U.S. 322, 336 (2003). When the district court’s denial of relief is bas e d u p o n p rocedural 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 stat e s 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 di s m i s s al, 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 SheriffAbner , 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 argu e s 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 magis tr at e judge, that purports to show that on November 10, 2009, he submitted for mailing a writ application to th e 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

ap p lication 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.
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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 o f th e 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 , 3 95 F.3d 560, 562 (5th Cir. 2004). Accordingly, a COA is GRANTED as to the di s trict court’s dismissal of these claims as time barred. The district court must resolve the factual question of whethe r Ro d dy timely placed his writ application in the prison mail system and further briefing on this issue before this court would not be he lpful; therefore, the case should be remanded without further proceedin g s before this court at this time. See Whitehead v . J

ohnson , 157 F.3d 384, 388 (5th Cir. 1998) (stating that, in appropriate cases, this court may grant C OA, vacate judgment, and remand without requiring further briefing). IT IS FURT H ER 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.

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