* 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that this opinion should not be published and is not precedent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. 00-11152

 

WAYNE DALE WHITWORTH,

Petitioner-Appellant,

versus

GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

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

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:00-CV-1249-G

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

April 11, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Wayne Dale Whitworth, Texas prisoner # 803862, seeks a

certificate of appealability (COA) to appeal the district court's

dismissal of his 28 U.S.C. § 2254 petition as time-barred. The

district court found that the one-year 28 U.S.C. § 2244(d)

limitations period was tolled while Whitworth’s state habeas

petition was pending, but his motion for reconsideration of the

denial of his state petition was an impermissible pleading under

Texas law and did not toll the limitations period. 
No. 00-11152

-2-

A COA may be issued only if the prisoner has made a

“substantial showing of the denial of a constitutional right.” 

28 U.S.C. § 2253(c)(2). If a district court “denies a habeas

petition on procedural grounds without reaching the prisoner’s

underlying constitutional claim, 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 v. McDaniel, 529 U.S. 473, 484-85

(2000). 

We have recently held that despite an apparent prohibition

on motions for the reconsideration or rehearing of habeas

petitions, see Tex. R. App. P. 79.2, an otherwise properly filed

motion for reconsideration in the Texas Court of Criminal Appeals

may toll the one-year 28 U.S.C. § 2244(d) limitations period. 

See Emerson v. Johnson, __ F.3d __ (5th Cir. Mar. 15, 2001, No.

99-20398). Relying on Texas state-court decisions which

entertained motions for reconsideration of habeas denials and the

United States Supreme Court’s broad interpretation of “properly

filed” in Artuz v. Bennett, 121 S. Ct. 361 (2000), we held that

the “AEDPA’s one-year statute of limitations is tolled during the

period in which a Texas habeas petitioner has filed such a

motion.” Emerson, at *5. Therefore, if Whitworth “properly

filed” a motion for reconsideration before the federal

limitations period expired, the limitations period would be

tolled while that motion was pending in the state court.
No. 00-11152

-3-

Although the district court apparently assumed that a motion

for reconsideration had been filed, the record is unclear on this

point. The district court relied on a letter from Whitworth’s

counsel to him that a motion for reconsideration had been filed,

but there is no such motion in the state-court record before this

court. There is a notation dated 10/1/99 on a letter from

Attorney Gras filed July 5, 1999, that no motion for

reconsideration was “ever filed.” This notation bears the

initials “JSG.” If no motion was filed, the district court’s

dismissal of the 28 U.S.C. § 2254 petition is not error. If such

a motion was filed, Emerson must be applied to determine

timeliness. Based on our decision in Emerson, we hold that

Whitworth has shown that jurists of reason would find it

debatable whether the district court was correct in its

procedural ruling. 

Whitworth must also show that jurists of reason would find

it debatable whether his petition states a valid claim of the

denial of a constitutional right. See Slack at 484-85. In his

original 28 U.S.C. § 2254 application, he alleged ineffective

assistance of counsel, an involuntary guilty plea, and newly

discovered evidence. At a minimum, Whitworth’s claims of

ineffective assistance of counsel present a facially valid claim

of the denial of a constitutional right, and it cannot be said

that reasonable jurists could not debate whether his claims are

completely undeserving of encouragement to proceed and should be

dismissed without further development in the district court. See

id.
No. 00-11152

-4-

Whitworth’s request for a COA is GRANTED. The district

court’s dismissal is VACATED, and the case is REMANDED for

further proceedings consistent with this opinion and our decision

in Emerson v. Johnson.