* 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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-60585

Summary Calendar

 

RICHARD D. STAFFORD,

Petitioner-Appellant,

versus

EMMITT L. SPARKMAN, Warden,

Respondent-Appellee.

---------------------

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:00-CV-209-D

---------------------

December 19, 2001

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Richard D. Stafford, a Mississippi prisoner (# R0135), seeks

a certificate of appealability (“COA”) to appeal the district

court’s dismissal of his 28 U.S.C. § 2254 habeas petition. 28

U.S.C. § 2253(c)(1). This court may grant a COA “only if the

applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). In order to

obtain a COA on a nonconstitutional issue, like the proceduraldefault doctrine, a habeas applicant must also show that jurists

of reason would find it debatable whether the district court was
O R D E R

No. 01-60585

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correct in its procedural ruling. Slack v. McDaniel, 529 U.S.

473, 484 (2000).

Stafford argues that the district court erred in rejecting

his claims that: (1) counsel performed ineffectively by 

(a) failing to investigate and to interview and call potential

alibi witnesses and (b) failing to argue a motion for continuance

to based on the prosecution’s failure to reveal the name of a

confidential informant (“CI”); (2) the trial court erred in

admitting an allegedly unreliable tape recording of the alleged

drug transactions; and (3) the court erred in admitting hearsay

testimony regarding one of Stafford’s witnesses. 

The district court concluded that Stafford’s claims

regarding the admission of evidence were procedurally defaulted,

based on the Mississippi Supreme Court’s that such postconviction

claims were procedurally barred, apparently by Stafford’s failure

to raise them on direct appeal. Stafford has not established

that jurists of reason would find the procedural-default ruling

debatable. See Slack, 529 U.S. at 484. Moreover, he has not

made a substantial showing of the denial of a constitutional

right with respect to his claim that counsel performed

ineffectively by failing to argue the continuance motion. 

Accordingly, a COA is DENIED as to these claims.

With respect to Stafford’s claims regarding counsel’s

failure to interview and call witnesses, a COA is GRANTED. In

addressing this claim, the magistrate judge’s report recommended

that these claims be denied because they were “unsupported by

affidavits or notations in the record,” despite the three
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No. 01-60585

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notarized affidavits submitted by Stafford in connection with

this claim. The district court adopted the report and

recommendation as its opinion. Any doubt about the granting of a

COA is resolved in favor of the applicant. Fuller v. Johnson,

114 F.3d 491, 495 (5th Cir. 1997). Because resolution of the

ineffectiveness claim regarding uncalled witnesses is largely

fact-intensive, the judgment as to this claim is VACATED and this

case is REMANDED for further proceedings consistent with this

opinion.

Stafford’s motion to proceed in forma pauperis on appeal is

GRANTED.

COA DENIED IN PART AND GRANTED IN PART; IFP GRANTED; VACATED

AND REMANDED.